Hereditary Peers: By-elections
 - Question

Lord Grocott: To ask Her Majesty’s Government what assessment they have made of the operation of section 2 of the House of Lords Act 1999; and what plans they have, if any, to amend section 2(4) which has so far resulted in 43 by-elections to replace hereditary peers.

Lord True: My Lords, the Government currently have no plans to amend Section 2(4) of the House of Lords Act 1999 to end by-elections for replacing excepted hereditary Peers.

Lord Grocott: My Lords, I am not in the least surprised by that reply. As the noble Lord knows, a by-election is taking place as we speak—the drama of it is among all of us. It is the seventh this year and, as the Minister knows, following the retirement of the Countess of Mar, there are now no women at all among the 92 hereditary places. Is it not obvious to the Minister, as it is to pretty well everyone else—apart from maybe half a dozen in this House—that a system of by-elections in which only hereditary Peers can stand and, in most cases, only hereditary Peers can vote, and which in practice is for men only, is not just indefensible but risible?

Lord True: My Lords, if the noble Lord was not surprised by my Answer, I was not surprised by his question. The Act was part of an understanding and agreement that was enacted in statute and then as required in Standing Orders in 1999. The noble Lord was PPS to the Prime Minister at the time and assented to that. Yes, there is a by-election today. I have voted in it and, in accordance with the Carter convention, I voted for a Labour Peer. I have kept to the agreements made in 1999.

Lord Snape: My noble friend is right to refer to the risible nature particularly of the current by-election, in which the whole House will be voting to replace the late Viscount Simon, a Labour Peer. Of the three candidates, one is a member of the Labour Party, one says that he is a Conservative and a third says that he is a member of the Labour Party but is pictured in Wikipedia festooned with Liberal Democrat paraphernalia. Is it appropriate that, despite the sad death of Lord Brian Rix, this Whitehall farce of ours looks like it will continue for many more years? I know that the Minister is not renowned for his sense of humour—

Noble Lords: Oh!

Lord Snape: My Lords, I withdraw. The Minister is renowned for his sense of humour. Perhaps he will join me in laughing at this procedure, which brings this House into great disrepute.

Lord True: I am certainly not going to comment on my sense of humour. What I would say is that I always take your Lordships’ House seriously. If that is mistaken for not having a sense of humour, then I plead guilty. I believe that I have answered the noble Lord’s question. The arrangements subsist under statute and agreement until such time as there is agreement not only in your Lordships’ House but across the country and in the other place as to the future nature of this House.

Baroness Hayman: My Lords, the work of this House, as shown on the Environment Bill this week, is greatly valued and respected, but we lose that respect because of the deep and profound concerns about the size of the House and the way in which people get here. Will the Government finally acknowledge that we need restraint and effective scrutiny on political appointments and that we need to end the farce of hereditary Peer by-elections?

Lord True: My Lords, I believe that I have answered the last question from the noble Baroness. People get here in many ways, the majority by patronage through nomination by one individual who happens to be the Prime Minister of the time. I respect everyone in this Chamber, however they got here. Indeed, some get here by being right reverend Prelates. We should concentrate on doing our work well and publicising our discontents a little less.

Lord Norton of Louth: Does my noble friend agree that closing off the by-election option for hereditary Peers and putting the House of Lords Appointments Commission on a statutory basis should not be seen as mutually exclusive options and that, implemented together, they could be taken to constitute stage two of House of Lords reform?

Lord True: My Lords, I regret that I do not agree with my noble friend. He will know that the position of the Government is that we do not favour piecemeal reform and that overall reform needs careful consideration.

Lord Wallace of Saltaire: My Lords, the role and composition of a second Chamber would be appropriately discussed by a constitutional convention. The noble Lord may recall that his party’s manifesto promised us the establishment of a constitutional convention, which should appropriately be on an all-party basis. The Government appear to have abandoned that. Will the Minister pledge to argue with his colleagues that they should reconsider it?

Lord True: My Lords, again, we have discussed this before. I have made clear in this House and the Government have made clear that the proposed groundwork of the commission is being carried forward  in separate workstreams—for example, the Faulks review on judicial work. We have decided to pursue this through separate workstreams.

Duke of Montrose: My Lords, behind the Question asked by the noble Lord, Lord Grocott, lies a sentiment that has much wider appeal among Members, as emphasised by the noble Baroness, Lady Hayman, which is that this House has too many Members. However, I consider the Question to be premature. Will the Minister consider whether the Act might give a precedent for legislation to ask all the major groups in the House to reduce their numbers by a similar self-selection process, as occurred under the Act? This could be by 20%, say, thereby reducing the numbers to become more in line with those in the other place without altering the current political balance.

Lord True: My Lords, my noble friend puts forward an interesting suggestion. Some would say that what was proposed in 1999 worked well at the time, but I repeat that the Government believe that reform must be considered very carefully. I take note of what my noble friend has said.

Lord Fowler: My Lords, for those of us who support the Question asked by the noble Lord, Lord Grocott, it is a matter not of personalities but of closing a backdoor that gives membership to this House —perhaps I should say another backdoor. I hope that the Government realise that the reputation of this House is not so strong that we can maintain arrangements that seem indefensible to the vast majority of this country. Perhaps the Government do not mind this, but many in this House do.

Lord True: My Lords, my noble friend talks about backdoors. Of course, the proposition before us would be a backdoor to the creation of an all-appointed House with no assent by people or Commons.

Baroness Smith of Basildon: My Lords, does the Minister not recognise that “hereditary” and “elections” seem to be a contradiction in terms? I recall that, on a parliamentary visit with the noble Earl, Lord Courtown, he would say, “My name is Patrick Courtown, I’m a hereditary Peer and I’m elected,” and I would say, “I’m Baroness Smith and I’m appointed.” It does not make sense to anybody else in the world. The point made by the noble Baroness, Lady Hayman, is the most important one: what really matters is the work of your Lordships’ House. When we are here, nobody knows who—other than the noble Earl, Lord Courtown, because I have just pointed it out—is hereditary and who is appointed, because it does not matter once they are here. Therefore, why not just end this farce of by-elections and treat all Members as equal? On that basis, I can promise that the Official Opposition will give any legislation a fair wind and get it through very quickly.

Lord True: I agree with the noble Baroness; indeed, I said that the work of this House is the most important thing. I agree with her that all of us here are equal. What I do not agree with, I repeat, is the proposition put by the noble Lord, Lord Grocott.

Lord Hannan of Kingsclere: My Lords, is this not really about good faith? I have not been here very long but some of your Lordships were here when a deal was done, establishing the current system pending stage two reform. At the risk of making myself Billy-no-mates again, as I was in my old job, I favour eventual democratisation but, unless we are prepared to do that, does my noble friend not agree that it is perverse to be targeting what is, despite a limited franchise, the only elected element in this Chamber?

Lord True: My Lords, I will not be tempted too far down that road or some people might resuscitate some of the things that I said 10 years ago about your Lordships’ House and its composition. I now stand at the Dispatch Box as a Minister. My noble friend is absolutely right that we have a system that came out of particular circumstances. It was assented to and, as the noble and learned Lord, Lord Irvine of Lairg, said at the time, will bind and honour all who gave it their assent until we have reform of your Lordships’ House, which, as I hear, a lot of people would favour.

UK–EU Trade and Cooperation Agreement: Foreign Workers
 - Question

Lord Hendy: To ask Her Majesty’s Government what assessment they have made of the impact of Article 399(5) of the United Kingdom–European Union Trade and Co-operation Agreement; and what steps they are taking in respect of the regulation of dues and charges payable by foreign workers or their employers.

Baroness Williams of Trafford: My Lords, Article 399(5) obliges parties to effectively implement provisions of the Council of Europe Social Charter that they have accepted. It does not impact their ability to choose or amend which provisions they accept. Article 18(2) of the charter relates to simplifying, reducing or abolishing fees for workers or their employers. The UK has denounced this provision. From February 2022, charges for work visas payable by all foreign workers and their employers will be harmonised.

Lord Hendy: My Lords, on 12 July the Foreign Secretary wrote to the Secretary-General of the Council of Europe, giving notice that with effect from 26 February 2022 the UK would denounce Article 18(2) of the European Social Charter 1961, which it had ratified 59 years earlier. That provision committed the contracting parties to simplify existing formalities and to reduce or abolish chancery dues and other charges payable by foreign workers or their employers. Deratification of that obligation may not be sensible in view of our shortage of lorry drivers but, more importantly, how can it be lawful? Perhaps the Minister will say that the Government overlooked the provisions of Article 399(5) of the Trade and Cooperation Agreement in attempting to denounce the provisions of the charter that it had already accepted.

Baroness Williams of Trafford: My Lords, TCA Article 399 only obliges the UK to implement provisions of the charter that the UK accepts. It does not prevent the UK from accepting further provisions or ratifying different versions of the charter in the future, nor does it prevent the UK from not accepting or disapplying provisions. The 1961 charter specifically allows states to disapply individual provisions of the charter and the UK may choose which provisions of the 1961 charter we accept at any given time. The TCA does not affect this position.

Lord Kirkhope of Harrogate: My noble friend is right in stating the extent of Article 399, but it is quite a wide extent, because obviously it deals with the implementation of all the ILO conventions that have been ratified, together of course with the provisions of the European Social Charter, which we have agreed to accept, as she says. Can my noble friend update us on the overall progress in a wider sense towards completing implementation?

Baroness Williams of Trafford: My Lords, the UK Government amended the immigration fee regulations in September to give effect to the change, as my noble friend knows. As I previously explained to the noble Lord, Lord Hendy, this is nothing to do with the UK-EU relationship. Our obligations on this matter relate to the implementation of the Council of Europe treaty and do not arise from the UK’s former relationship with the EU or from the TCA.

Baroness Chakrabarti: My Lords, I am conscious that this Question follows one that attracted remarks about the sanctity of a deal done in 1999, but touches on a deal done rather more recently. I ask the Minister how it can make sense for two parties to say that they will honour and implement commitments made under the European Social Charter, but subsequently say that it is perfectly permissible under that deal to disapply and renounce them.

Baroness Williams of Trafford: Well, I think I explained our obligations to the noble Lord, Lord Hendy. We continue to place great value on the role of the Council of Europe in advancing work on human rights, democracy and the rule of law across Europe. It has been and will continue to be important to the UK’s human rights and foreign policy agenda.

Lord Purvis of Tweed: My Lords, the new Justice Secretary is on record for calling the Council of Europe’s convention on human rights “feckless” and “undemocratic”. Now the Government have signalled that they wish to dilute the commitments under the Council of Europe’s Social Charter. Is this part of an agenda to seek trade agreements with countries that do not adhere to all eight of the ILO conventions and to the Social Charter? Will the Minister state clearly whether we will have stronger or lesser labour rights as a result of these moves?

Baroness Williams of Trafford: My Lords, we will have an immigration system in which, wherever in the world you come from, there will be fairness. We are not considering withdrawing from the charter and I  have explained about the human rights aspect. The CESC allows us to denounce all the charter or specific provisions. There is a huge list of countries, so we would not be alone in not implementing Article 18(2).

Baroness Chapman of Darlington: My Lords, the TCA is disappointingly light on support for the services sector, despite services contributing the overwhelming majority of UK economic activity. Many different sectors are experiencing a rapidly increasing vacancy rate, with hospitality facing particular challenges filling roles, due to the costs and complexities of new arrangements. We were promised that our new relationship with the EU would bring less red tape and bureaucracy rather than more, so what is going wrong?

Baroness Williams of Trafford: I could tell the noble Baroness what is going right. We will have a system that is fair for the whole world, as people who have the skills and can contribute to our economy will be able to make their life and work in the UK. I accept her point about certain sectors facing shortages at the moment and the Government have remedied this.

Lord Lilley: My Lords, I greatly respect the expertise of the noble Lord, Lord Hendy, and do not want to comment on the legality of this, but could my noble friend confirm that the effect of reversing the Government’s policy would be to make it easier and cheaper to import cheap labour from abroad? Would the Opposition Benches not be more likely to make the Labour Party electable again if they were to seek to implement Gordon Brown’s cry to train people, so that we have British workers doing British jobs, rather than simply making it easier to import cheap labour from Europe?

Baroness Williams of Trafford: I totally agree with my noble friend and have said on many occasions that the days when we could import cheap labour from the EU or anywhere else are gone. Our immigration system will be based on the skills that people bring to bear and there will be certain thresholds on incomes.

Lord McFall of Alcluith: The noble Baroness, Lady Ritchie of Downpatrick, is not present, so I call the noble Lord, Lord Foulkes of Cumnock.

Lord Foulkes of Cumnock: My Lords, the Minister will be aware that there is some confusion arising from statements made by the Home Secretary about our adherence to the European Convention on Human Rights. Earlier, I think she said that the Government were still adhering to it. Will she confirm that there is no intention in any way to withdraw from the European Convention on Human Rights and the Council of Europe?

Baroness Williams of Trafford: I will not add to what I said to the noble Baroness, Lady Chakrabarti, but our departure from the European Union will not diminish the UK’s engagement with the Council of Europe. We are committed to the European Convention  on Human Rights and to improving the effectiveness of its court. We are a leading player, a founder member and one of the five major financial contributors, having given €34.2 million this year. We use the Council of Europe to hold member states to their human rights obligations and deliver messages to them, in public and in private.

Baroness McIntosh of Pickering: Does my noble friend agree that foreign workers or their employers coming to fill vacancies as lorry drivers, forklift truck drivers, nannies or au pairs have to pay for their visa? Is that not proving to be a barrier to them coming to the UK, and will this be reviewed?

Baroness Williams of Trafford: I do not agree with my noble friend. We do not have any shortage of people who want to come here. We do have shortages in certain sectors due to supply chain issues and we are remedying that.

Lord McFall of Alcluith: My Lords, all supplementary questions have been asked and we now move to the next Question.

Clinical Negligence Claims
 - Question

Lord Storey: To ask Her Majesty’s Government what assessment they have made of the increase in the value of clinical negligence claims, which are expected to cost £8.3 billion from incidents in 2019-20.

Lord Kamall: The costs of clinical negligence are rising at an unsustainable rate, eating into resources for patient care. Annual cash payments have quadrupled in the last 15 years to £2.2 billion in 2020-21. That is equivalent to 1.5% of the NHS budget and these costs are forecast to continue rising. This is despite our substantial safety programmes. The Department of Health and Social Care is working intensively across government to address these issues.

Lord Storey: I thank the Minister for his reply. I have raised this issue every year and have heard a similar response from the Minister sitting there every year. When a child is born severely disabled, the parents have to fight to get compensation or money to be able to look after that child. That can often take years. Does the Minister agree with the former Secretary of State for Health, Jeremy Hunt, that we should look at the Swedish model in which, if a child is born severely handicapped, the money is made available straightaway and the parents do not have to wait for the courts to provide support?

Lord Kamall: The Government have looked at a number of different schemes from abroad. It is always very important to learn from good and bad  practice, but what happens in a number of those cases is that the costs of compensation end up increasing. So We are looking at various solutions.

Baroness Davidson of Lundin Links: My Lords, the new indemnity scheme for historical clinical negligence that was brought into effect last year, the Existing Liabilities Scheme for General Practice, initially applied only to general practice members of the Medical & Dental Defence Union of Scotland, with general practice members of the Medical Protection Society due to come under its purview a full year later, in April just past. So I ask the Minister to update the House of any formal or informal assessments of the workings of this scheme in Scotland, the level of uptake and lessons learned, before it was further rolled out.

Lord Kamall: Before I respond, I wish to give a belated welcome to my noble friend Lady Davidson. I have worked with her often in the past, and she displays a wisdom beyond her years and a sense of humour that excels that of many on our Benches. To answer my noble friend, the Existing Liabilities Scheme for General Practice covers the historical liabilities of GPs, where the department has agreed commercial transactions with the previous indemnity providers. The scheme applies only to general practice in England and is part of the state indemnity reforms introduced in England in 2019. These 2019 reforms mean that GPs in England now benefit from more stable and affordable indemnity to cover future negligence claims. I understand that similar arrangements were introduced in Wales at the time. I am afraid that the policy on state indemnity is a devolved matter, but officials in the department are in regular contact with their counter- parts in the devolved Administrations.

Baroness Stuart of Edgbaston: My Lords, some 10 years ago the NHS Litigation Authority concluded in its maternity claims report that
“the most effective way to reduce the financial and human cost of maternity claims is to continue to improve the management of risks associated with maternity care, focusing on preventing incidents involving the management of women in labour”.
Yet, in the intervening 10 years, the number of claims has gone up from 391 in 2009 to 765 in 2019-20. Is it not about time that we put patient safety first in these considerations rather than looking at what happens to lawyers, and take some lessons from the airline industry where, if something goes wrong, we start by looking at no-fault and do not allocate blame but look at improving the system?

Lord Kamall: The noble Baroness raises an important point. However, in looking at the system overall, there is no evidence to suggest that the rise in overall costs is due to a decrease in NHS safety. Nevertheless, safety and learning from incidents are essential in their own terms. Our ambition is for the NHS to be the safest in the world and for maternity safety to be a priority, and there are various schemes in place.

Lord Hunt of Kings Heath: My Lords, can the Minister tell me why the Government do not move to repeal Section 2(4) of the Law Reform (Personal Injuries)  Act 1948, which essentially disregards treatment that the claimant may receive under the NHS? Can he also do something about the record of NHS Resolution in paying damages in 80% of litigated cases, with its lawyers being paid on a win-or-lose basis and therefore incentivised to carry on with unsustainable defences?

Lord Kamall: The noble Lord raises an important point about how we resolve a number of these issues. As many noble Lords will be aware, when the NHS does a wonderful job, we all support it but, sadly, when it does not do such a good job, there is a culture of delay, defend and deny. Sometimes it is incredibly difficult, and I have heard of people who have had terrible experiences in trying to get someone to resolve their issue. I heard of a very sad case: a young official in the department told me that a friend of hers, a young Afro-Caribbean lady, 24 years old, lost a baby and, miraculously, the papers have disappeared. They are now trying to gaslight this poor patient. It is really important that we resolve this.
In terms of the cost, NHS Resolution negotiates large-scale contracts for defendant legal services, using its position as a bulk purchaser to obtain the best expertise. NHS Resolution is looking to resolve claims promptly and most claims are often settled without court proceedings or going to trial. It is a difficult balance because while we may be concerned about the fees of the injury lawyers, they are able to shine a spotlight on the NHS delay and denial, as it were, and go further when many patients themselves or their families are in distress.

Baroness Walmsley: My Lords, the element of compensation in clinical negligence cases which relates to the cost of further health treatment is based on the cost of care in the private sector. Why is this so when NHS treatment is as good or better? Should not private health costs be provided only where the patient cannot get treatment on the NHS?

Lord Kamall: Quite often patients choose to go on the NHS and when they are unable to do so because of various factors they will go private. I wonder whether we should be giving preference. We want to treat all patients equally.

Baroness Eaton: My Lords, given that the key to reducing the overall cost of clinical negligence is to have less of it, the real issue is the need to increase joined-up patient safety learning across the NHS. Does my noble friend the Minister accept that the cost of current legislation—that is, damages and claimant legal costs—is reducing in any event, as detailed in the NHS Resolution annual reports of 2020 and 2021, and that the overall payment for claims in 2019-20 was therefore £2.2 billion?

Lord Kamall: My noble friend raises an important point. The Government remain committed to continuous safety improvement, particularly on developing learning cultures in our health system and tackling the issues of denial and delay. While we strive towards this goal, we have seen that the cost of clinical negligence claims has quadrupled in the last 15 years, and there is no guarantee that reducing harm would necessarily result  in fewer claims. In many cases, the overall costs are being driven by increases in the average cost per claim. Indeed, claims have recently levelled out, falling from £2.26 billion to £2.17 billion but this is largely due, in least in part, to the coronavirus pandemic.

Baroness Wheeler: My Lords, the annual cost of clinical negligence has risen from £1 million in 1975 to £2.2 billion last year, as we have just heard. The Medical Defence Union’s evidence to the Health and Social Care committee’s inquiry into NHS litigation reform predicted that any money raised by the new health and social care levy would be entirely swallowed up by the amounts being paid out each year in NHS clinical negligence claims. What assessment have the Government made of this claim, how does it impact their plans to reduce the huge NHS waiting lists for treatments, and what money will be left for social care?

Lord Kamall: The noble Baroness raises an important point that spending more on compensation means less money for the care of patients. That is why we are committed to looking at various ways of reducing this and are working with the Ministry of Justice. Issues include the role the royal colleges play and the training they give to their medical staff, while needing to instil a culture of more openness when things go wrong. When things go right, we are ready to praise but when things go wrong, they have to stop hiding, delaying and denying, and be open.

Lord McFall of Alcluith: I call the noble Lord, Lord Walney. He is not present. I call—

Lord Walney: Yes I am.

Lord McFall of Alcluith: I am sorry.

Lord Walney: Thank you. I accept entirely what the Minister says about learning from experience but was this not supposed to have been baked into the NHS after numerous reports in recent years? Does he accept that we need to look again at the way in which the NHS trusts are often slow in learning from their mistakes, rather than allowing this culture to continue?

Lord Kamall: I completely agree with the sentiments behind the question. It is important that at all stages we bake in a culture of openness in the NHS so it can no longer hide behind the fact that we are full of praise for it when it does things well. However, when things go wrong, I am afraid that it shuts up shop and hides behind various techniques. It is important that we are as open as possible in trying to make sure we tackle some of the problems and learn in the future.

Russia: Gas Supplies
 - Question

Lord West of Spithead: To ask Her Majesty’s Government what assessment they have made of the build-up of Russian military forces on the border with Ukraine and the implications for gas supplies to Western Europe.

Lord Ahmad of Wimbledon: My Lords, we have significant concerns about Russia’s pattern of military build-ups on the border with Ukraine and in illegally annexed Crimea. Russia’s threatening, destabilising behaviour is unacceptable. The United Kingdom and international allies are unwavering in our support for Ukraine’s sovereignty and, indeed, territorial integrity. Russia’s destabilising behaviour could affect western European gas supplies, especially as storage levels are low. However, UK gas imports are diverse and in 2020 Russian imports represented less than 3% of our total supplies.

Lord West of Spithead: I thank the Minister for his comprehensive reply, but it is much broader than this. I believe that NATO nations are standing into danger. We have seen this pressure on gas supplies. We have seen the build-up of military forces. We have seen Alexander Lukashenko—who is, let us face it, a puppet of Putin—now putting pressure on the borders of Poland and Lithuania. There are very real risks that things might escalate. This is highly dangerous behaviour. If that happens, would an Article 4 be called? I am not sure—it might be. That is extremely dangerous and worrying.
There are two issues. First, the NATO Council should meet to discuss whether using the Nord Stream 2 pipeline is in the interests of Europe. It is a real danger to rely so much on Russia. Secondly, bearing in mind that the actions on the borders might well lead to an Article 4-type question, there needs to be a meeting of NATO Ministers. This is becoming a very dangerous time—this is typical grey-zone warfare that Putin has embarked on and is now expanding.

Lord Ahmad of Wimbledon: My Lords, on both those fronts I totally agree with the noble Lord. I agree with his assessment that the issue of Nord Stream 2 is having a destabilising effect across Europe—we have repeatedly been consistent in expressing our concerns in that regard—and about the importance of NATO and of NATO Ministers meeting. A NATO meeting is scheduled, and I am sure that these issues, particularly with the unravelling of the situation on the Polish border, will be primary in the concerns and discussions that the NATO Ministers have.

Lord Browne of Ladyton: My Lords, it seems almost certain that reports of build-up along the border are directly related to a year-long increase in the number of violations on both sides of the line of contact of the June 2020 ceasefire agreement. If that is the case, that needs to be engaged with. What diplomatic contribution are our Government making to help to strengthen the ceasefire, either within the OSCE or otherwise multilaterally or bilaterally?

Lord Ahmad of Wimbledon: My Lords, the noble Lord speaks with a lot of insight and experience. I assure him that, for example, my right honourable friend the Prime Minister engaged directly with President Putin on 25 October, where Ukraine was primary in their discussions. I too, through the workings of the OSCE, an area that I will now be looking after, will ensure that the Minsk accords and agreements, and  the principle that was agreed, will be upheld. So on all diplomatic fronts, we are engaging, both bilaterally and through multilateral organisations.

Lord Purvis of Tweed: My Lords, last week there were reports that Gazprom was putting pressure on Moldova to sign an agreement if it distanced itself from the European Union. The Ukrainian energy Minister has called for the European Commission to formally review the Nord Stream 2 approach. The Minister here said that the UK has concerns about the scheme. Can he be specific? Is he supporting a halt to the process, and does he therefore disagree with the European Commission’s position that due process should be carried out regarding the Nord Stream 2 project?

Lord Ahmad of Wimbledon: My Lords, on the specific point about Nord Stream 2, our position is consistent: we believe that it destabilises the continent of Europe due to its reliance on it. Recent events have also indicated its heavy reliance on a single source of supply and the insecurity that that can bring. We are working with key partners on this issue, but we are very clear on what our position is.

Lord Robathan: My Lords, I should declare a sort of interest, in that that nice man Mr Putin has banned me from going to Russia. I think the Government accept how serious the situation is, but the Minister should know that Putin will judge us by our actions, not our words. So does he think it is sensible for the United Kingdom at the moment to be reducing its Army by 11% and reducing the number of its surface warships and aircraft, or does he think that President Putin will look at us and say that that shows weakness?

Lord Ahmad of Wimbledon: My Lords, on my noble friend’s first point, I will be sure to relay that to the Prime Minister and raise directly the concerns about him not being able to visit Russia. On the serious point about our military presence, as my noble friend will be aware, we have exercised our full support to Ukraine, including the deployment of vessels to the region in order to ensure security for international waters, and we strongly support the Ukrainian position on territorial sovereignty and integrity.

Lord Houghton of Richmond: My Lords, malicious activity by Russia in the context of destabilising Ukraine was prominent in the recent integrated review’s assessment of the global security context. Given its evident predictability, can the Minister reassure the House that the relevant government machinery—namely, the National Security Committee—has met recently to review scenarios and likely contingent responses, both national and integrated with close allies?

Lord Ahmad of Wimbledon: My Lords, without going into the detail, the noble Lord is of course correct that the integrated review had a specific focus on the threat posed by Russia, not just through aggression from military sources but through other sources—cyber remains a key concern. The National Security Council repeatedly meets on issues of priority, of which the concerns across Europe are also well documented.

Lord Collins of Highbury: My Lords, as Russian forces continue to build up on the Ukrainian border, Associated Press reported that Russia and Belarus are further deepening their integration, stopping short of a full merger. Obviously Lukashenko now relies on Russia for support far more than he did before because of the international community’s opposition to his crackdown on the opposition within the country; 10 days ago we discussed the sanctions. I welcome what the Minister has said about discussions with NATO but, as the noble and gallant Lord, Lord Houghton, said, we really need a co-ordinated approach here. Can the Minister tell us why the Government are still delaying the full implementation of the Russia report?

Lord Ahmad of Wimbledon: My Lords, on the noble Lord’s last point—the Russia report—we have already taken key steps and actions. I have previously documented the steps that we have taken. There is a cross-government approach to the response to that, and a reply was issued immediately after the report came out. In the interests of time, I will write to the noble Lord about the specific actions that we have undertaken.

Lord Dobbs: My Lords, South Ossetia, Crimea, eastern Ukraine and even Salisbury—for the past 10 years and more, Russia has been pursuing a policy built on the distraction of the West, of bullying, balderdash and sometimes outright banditry. To follow up on previous questions, is it not time for a renewed, revitalised and fully integrated strategy, not just military and economic but also diplomatic, particularly focused on the Black Sea, which is an area of great potential vulnerability for Russia? The first part of any such strategy must surely be for us in western Europe to stop buying more and more Russian gas every time we catch a cold.

Lord Ahmad of Wimbledon: My Lords, I agree with my noble friend and I assure him that we are doing exactly that. The integrated review is a good example of how we are working across government, and indeed with our allies. On his last point, as I said in my original Answer, less than 3% of our gas supply now comes from Russia. Currently, 45% of our overall energy mix is gas, of which 48% is domestically sourced, so increasingly we are moving away; certainly our reliance on Russian gas is less than that of others across Europe.

Lord McFall of Alcluith: I call the noble Viscount, Lord Waverley. He is not present, so I call the noble Lord, Lord Campbell of Pittenweem.

Lord Campbell of Pittenweem: My Lords, what notice did Her Majesty’s Government have of President Biden’s withdrawal of the objection to Nord Stream 2? What representations did our Government make to the Government of the United States?

Lord Ahmad of Wimbledon: My Lords, what I can speak to is that we have had a range of discussions, and our views on Nord Stream 2 are very well documented. On the point that the noble Lord raises, we have made our position very clear to the US, and indeed to all our other allies, about Nord Stream 2 having a destabilising effect across the continent of Europe.

Lord Balfe: My Lords, does the Minister not remember that part of the problem with the Nord Stream gas pipeline was interference by the Ukrainian authorities with the Russian pipeline that was running through Ukraine? Would it not be best to start by getting an agreement with the German Government on the best approach and way forward?

Lord Ahmad of Wimbledon: My Lords, obviously the German Government will present their own position. We note the US and German collaboration to mitigate the negative energy impacts of the pipeline, but it is equally important that we stand firm in support of Ukraine, which continues to be challenged, and not just by insecurity when it comes to energy; let us not forget the situation in the Donbass and the continuing pursuance of the annexation of Crimea, which is right on our continent. It is Russian aggression that needs to recede.

Lord McFall of Alcluith: My Lords, that concludes Oral Questions for today.

Motor Vehicles (Driving Licences) (Amendment) (No. 4) Regulations 2021
 - Motions to Approve

The Earl of Courtown: Moved by The Earl of Courtown
That the draft Regulations laid before the House on 9 and 27 September and 18 October be approved.
Relevant documents: 17th Report from the Secondary Legislation Scrutiny Committee, 14th Report from the Secondary Legislation Scrutiny Committee (special attention drawn to the second instrument). Considered in Grand Committee on 9 November.
Motions agreed.

Social Security (Scotland) Act 2018 (Disability Assistance for Children and Young People) (Consequential Modifications) (No. 2) Order 2021
 - Motion to Approve

Viscount Younger of Leckie: Moved by Viscount Younger of Leckie
That the draft Order laid before the House on 7 September be approved. Considered in Grand Committee on 9 November.
Motion agreed.

Wellbeing of Future Generations Bill [HL]
 - Order of Commitment

Lord Bird: Moved by Lord Bird
That the order of commitment be discharged.

Lord Bird: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, noble Lords object, I beg to move that the order of commitment be discharged.
Motion agreed.

Status of Workers Bill [HL]
 - Order of Commitment

Lord Hendy: Moved by Lord Hendy
That the order of commitment be discharged.

Lord Hendy: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Motion agreed.

Education (Assemblies) Bill [HL]
 - Order of Commitment

Baroness Burt of Solihull: Moved by Baroness Burt of Solihull
That the order of commitment be discharged.

Baroness Burt of Solihull: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Unless, therefore, any noble Lord objects, I beg to move that the order of commitment be discharged.
Motion agreed.

EU Relations
 - Statement

Lord Frost: My Lords, with the leave of the House, I will now make a Statement to update the House on various recent developments in our relationship with the European Union. The Statement will also be made in the other place in due course by my right honourable friend the Paymaster-General.
As noble Lords will know well, we have two principal agreements with the EU: the trade and co-operation agreement and the withdrawal agreement. The first—the biggest and broadest bilateral trade agreement in the world, freely agreed by both parties—is working well. Teething problems have largely been dealt with, business  has adjusted well to the new relationship, and trade is getting back to normal. Both parties have agreed data adequacy. We are reaching complementary agreements—for example, the 17 bilateral aviation agreements that we have reached. The substructure of specialised committees is functioning; almost all the committees have now met, the trade partnership committee will meet on 16 November, and we expect a further partnership council in December.
There are, however, two problem areas within the TCA. The first is fisheries and the second is Union programmes, notably the Horizon science research programme. On fisheries, since we received the necessary applications in June, we have been engaged in technical discussions about licensing with the Commission, also involving the Governments of Guernsey and Jersey and the French Government. As is known, we have granted 98% of applications from EU vessels to fish in UK waters—nearly 1,800 licences in total. The remaining 2% have not provided the data needed to access our 6 to 12 nautical mile zone. As we have said consistently, we are ready to consider any new evidence to support the remaining licence applications. Indeed, we granted three more licences on 14 October because the Commission sent new evidence, then another on 26 October. We set out the full latest figures to Parliament on 3 November. Licences for Jersey and Guernsey waters are assessed by the relevant authorities in Jersey and Guernsey, not the UK Government. However, we support the approach they have been taking, which has been entirely in line with the provisions of the TCA.
We have therefore been disappointed that, faced with these facts, the French Government felt it necessary to make threats which were disproportionate, unjustified and would have been a breach of the trade and co-operation agreement. I welcome France’s deferral of the implementation of these measures; I hope they will take them off the table permanently. I spoke yesterday to my friend Clément Beaune in the French Government following our talks in Paris on 4 November. We obviously have different views on the fisheries question, but it is certainly our intention to keep working to get to an outcome which is fair to those who are genuinely entitled to fish in our waters.
The second difficulty I mentioned is that of the Horizon science research programme and some other related programmes. We agreed to participate in this in the TCA, and to pay a contribution, which is likely to be £15 billion over seven years. The TCA is clear that the UK “shall” participate, and the relevant protocol “shall” be adopted. That is an obligation. If it were to become clear that the EU did not intend to deliver on that obligation—and it has not done so so far—or simply to delay sine die, we would regard the EU as in breach of Article 710 of the TCA. We would of course put together a domestic research programme for our own scientists and universities in its place. But it is in neither ours nor the EU’s interests to get to that point, and much the best way forward is for the EU instead to finalise our participation as a matter of urgency.
I now turn to the other agreement, the withdrawal agreement, which of course includes the Northern Ireland protocol. We have been in discussions with the Commission on the changes needed to that protocol  since we published our Command Paper in July. Our position was set out then in full and remains unchanged. On 13 October, the EU published four non-papers with proposals on medicines, customs, sanitary and phytosanitary matters—or SPS—and the engagement of Northern Ireland stakeholders in the operation of the protocol. Around the same time, we transmitted a new legal text to it, operationalising the proposals set out in the Command Paper in legal form. Our immediate view of those non-papers was that, while the EU’s proposals did not go as far as our Command Paper, nor cover all the areas that we believed needed to be addressed—in particular, the protocol’s untenable governance arrangements—they were worth discussing. We were keen to see if its proposals would at least reduce trade friction in the way that it claimed.
Since then, we have been in intense discussions with the European Commission. I have met Vice-President Šefčovič every week for the last three weeks in Brussels and London, and we will meet again on Friday as part of this week’s talks. The aim has been to assess whether it is possible to close the substantial gap between our positions and secure a consensual, negotiated resolution. So far that has not been possible. This is, at least in part, because the Commission’s proposals would not do enough to make the protocol sustainable for the future or even deliver what they have claimed. I have heard that view also expressed by many businesses I have spoken to in Northern Ireland and Great Britain.
If the talks do in the end fail, we will of course publish in full our assessment of the EU’s proposals and set out why they fall short of a durable settlement, but we will not do that until we have exhausted all the negotiating possibilities. For now, I wish to preserve the integrity of the negotiations and to remain positive. Accordingly, we continue to work to see whether the EU position on these issues can yet develop further, and whether it is possible to find a way to deal with the other important matters necessary to put the protocol on a sustainable footing, such as the interlinked issues of the imposition of EU law and the Court of Justice, state aid, VAT, goods standards, and so on. That work will continue in the talks under way this week.
In my view, this process of negotiations has not reached its end. Although we have been talking for nearly four weeks, there remain possibilities that the talks have not yet seriously examined, including many approaches suggested by the UK. So there is more to do and I certainly will not give up on this process unless and until it is abundantly clear that nothing more can be done. We are certainly not at that point yet. If, however, we do in due course reach that point, the Article 16 safeguards will be our only option.
We have been abundantly clear about this since July, when we made it clear that the tests for using Article 16 were already passed. Nothing that has happened since has changed that. I can reassure noble Lords that, if Article 16 were to be used, we would set out our case with confidence and spell out why it was wholly consistent with our legal obligations. We would also be ready to explain that case to any interested party, not just the signatories to the treaty but those with a broader interest in relations with the EU and the UK.
However, the EU seems to be arguing something different at the moment. It seems to be claiming that it would be entirely unreasonable for the British Government, uniquely, to use these wholly legitimate safeguard provisions within the treaty, designed precisely to deal with situations like the current one. It also suggests that we can only take that action at the price of massive and disproportionate retaliation.
I gently suggest that our European friends should stay calm and keep things in proportion. They might remind themselves that no Government and no country have a greater interest in stability and security in Northern Ireland and in the Belfast/Good Friday agreement than this Government. We are hardly likely to proceed in a way that puts all that at risk. If the EU were to choose to react in a disproportionate way and decide to aggravate the problems in Northern Ireland, rather than reduce them, that is of course a matter for them. At that point, of course, we would be entitled to come to our own judgment about how much value we could attach to their commitment to supporting the peace process and the best interests of the people of Northern Ireland, as against protecting their own interests.
This Government will always proceed in the best interests of Northern Ireland and, indeed, the whole of our country. That means, one way or another, working towards a balanced arrangement in Northern Ireland that supports the Belfast/Good Friday agreement rather than undermining it. We would much rather that others joined us on that journey, rather than making it more difficult. I hope that, in the short number of weeks before us, the Commission and the EU member states will look at what we have in common, look at our collective strategic interests as western countries and help us to find a stable and sustainable solution so that we can all move on. There is still a real opportunity to turn away from confrontation, move beyond these current difficulties and put in place a new and better equilibrium. I urge everyone to take that road—the road not of confrontation but of opportunity—for the sake of everyone in Northern Ireland and beyond.

Baroness Chapman of Darlington: My Lords, I am grateful to the Minister for advanced sight of his Statement. However, I express my disappointment that this is the second time in as many months that he has waited until the final day before a recess to make a Statement on such important issues. He knows that some colleagues may not be present and that, importantly, the other place is not sitting. The Statement may well be repeated by the Paymaster-General in due course, but there will be a significant delay and I do not see anything in the Minister’s text that could not have been shared with both Houses on Monday or Tuesday.
We all know that the Government’s position on these matters often fails to stand up to scrutiny, but it is only right that he and his colleagues in the other place subject themselves to that scrutiny. I have suggested before that continuing the Brexit melodrama suits the Minister and his Cabinet colleagues. He has been dismissive, but perhaps the hope in No.10 is that this battle will finally distract the papers and public from the sleaze accusations—call me cynical.
We welcome the Minister’s update on discussions with the French Government, the Commission and our friends in Guernsey and Jersey around fishing licences. During the passage of the Fisheries Act, your Lordships’ House warned that the timescales for implementing a new licensing system were tight and that issues such as these may arise. Clearly, this does not excuse some of the interventions we have seen during the recent dispute, and we hope that all sides can continue these discussions in the calmer manner seen during recent days.
On Horizon, it is of course disappointing that ratification of the UK’s participation is taking so long. As the pandemic has shown, cross-border academic collaboration can only be a good thing. UK researchers have already faced a huge amount of uncertainty as the Government weighed up whether to participate in programmes such as Horizon. Now that the decision has been made and enshrined in the TCA, as noted by the Minister, the EU must act accordingly. He says that, if the EU does not comply, the Government will create a domestic equivalent, so can he confirm what contingency planning may already be taking place? When could such a scheme be operational? I am happy for him to write to me on that.
We have all watched with interest and alarm in recent days as the rhetoric around Article 16 is once again ratcheted up. We read of potential dates for the UK to trigger a trade dispute, and of others on which Mr Šefčovič will outline retaliatory measures. Cooler heads must now prevail. We have also seen reports that the Minister is seeking outside legal advice on rewriting the protocol, including on the Court of Justice issue. Commentators suspect that this is to prevent the Attorney-General having to overrule in-house legal advice, so can the Minister confirm whether such a search is indeed under way?
This also brings us back to the question of when Parliament will see the legal text sent to Brussels by the Government. We were told that it merely replicated the contents of the Command Paper in legalese, but if that is the case, why is new advice necessary? Does he intend to produce a revised draft? Why were Ministers in Northern Ireland not consulted? It is clear from the Minister’s Statement that UK-EU relations have not significantly improved, despite the diplomatic mastery that he deployed during his short trip to Lisbon.
Following each week of talks, we hear that, rather than bridging gaps, the two sides are growing further apart. That will not only deeply disappoint UK businesses but, as we move into the festive period, frustrate them too. This is not a game to them; rather, it is about getting products on shelves and sustaining people’s livelihoods. At the time of publication, a month ago, a variety of business groups believed that the Commission’s proposals represented a significant step forward. We know that there are disputes, but there remains widespread agreement that there would be significant improvement.
Central to this are the people and communities of Northern Ireland. The evidence increasingly shows that they want a deal between the EU and UK, not another stand-off, with all the uncertainty that that  brings. The respected Liverpool Institute for Irish Studies found that people of Northern Ireland oppose the use of Article 16 and instead want solutions.
Business groups in Northern Ireland are demanding a deal. Seamus Leheny of Logistics UK said that
“a UK-EU negotiated outcome is vital”
for the economy. Interestingly, he has not had any representation over the ECJ whatsoever from his 18,000 members. That is why Labour has called on the UK and EU to bring Northern Ireland’s leaders and communities into the process to speak for themselves. It is simply untenable to say to the people of Northern Ireland, “This is what we’ve decided: take it or leave it”. Northern Ireland must be involved in these talks and in the huge decisions being made about its future.
The Minister has said on several occasions that he stands ready to look at any and all proposals for improving the flow of trade between Great Britain and Northern Ireland, wherever they may come from. Why, then, has he been so reticent to seriously consider the idea of a wide-ranging, long-lasting veterinary agreement that is backed by organisations like the CBI? The EU has previously signalled that such a deal can be done, so why is that not currently at least on the table?
Although it increasingly feels inevitable, it continues to be our view that triggering Article 16 would be a destabilising step for businesses and communities alike. It may serve the Government well to maintain division, but it does nothing for anyone else. The Minister has been clear that he does not like the protocol. We know that, because he tours the studios every week telling the country of all the problems he has found with the deal that he personally negotiated.
But the evidence shows that, whatever the Minister wants, people in Northern Ireland want a deal. It is time for the Minister to show some responsibility. He should work constructively with the EU to find solutions, and then, if he still can, given everything that has happened, he must play an active role in rebuilding support and trust among all communities in Northern Ireland.

Lord Newby: My Lords, I thank the Minister for making the Statement. However, just as he refers to the production by the EU of “non-papers”, it seems to me that this is largely a non-Statement. It contains nothing new and largely consists of yet more sabre-rattling—something that, I have to accept, the Minister excels at. He says that the trade and co-operation agreement is working well. According to the OBR, its effect is that our GDP will be 4% lower than if we had remained in the EU, so I suppose we should be very grateful that it is not working badly.
Underlying all the issues to which the Statement refers are two substantive problems for the Government. The first relates to trust. As the Minister made clear in his Lisbon speech, the UK is widely distrusted as a reliable partner. As a result, everything becomes more difficult, and what should be relatively small, easily resolvable issues, such as the licensing of fishing boats, become potential major flashpoints.
The second is that there exists at the heart of the Northern Ireland problem the irresolvable issue of where the EU-UK trade boundary is set. The Government  in reality do not want a boundary at all when it comes to GB trading with Northern Ireland but want one when it comes to trading with the EU. The Good Friday agreement means that they cannot possibly have this best of both worlds. In seeking to achieve that impossibility, the Government are, understandably, running into problems, but it is completely disingenuous for the Minister to protest about unintended consequences of having a border down the Irish Sea when the Government’s own impact statement at the time set out in major detail exactly what those deleterious impacts would be. The Minister negotiated the deal. I cannot believe that he did not understand the consequences at the time. Did he think that it would be possible to live with them, or did he even then think that he could renege on the deal once the main trade and co-operation agreement had been signed? Either way, he was less than straightforward in presenting the deal as a Great British negotiating success.
On the operation of the protocol, the EU has made very substantive concessions which appear to offer the prospect of a resolution of the main operational problems. In these circumstances, repeatedly to dangle the prospect of Article 16 in front of the EU just looks like a provocation which will make the negotiations harder rather than easier. At the weekend, in commenting on the Article 16 threat, Sir John Major said that it was “colossally stupid” and “un-Conservative”. In part, he said this because it would threaten a trade war with the EU, a prospect which Simon Coveney again raised at the weekend, which would indeed be colossally stupid. But in part also, he said it because it undermines the Government’s central claim that they “got Brexit done”. Triggering Article 16 would lead to chaos and confusion, when businesses, not least in Northern Ireland, want stability and continuity. It would be the opposite of Brexit having been done. How, therefore, does the Minister rebut Sir John’s comments? How does he respond to the point made by the noble Baroness, Lady Chapman, that the majority of people in the Province do not believe that triggering Article 16 is in their best interests or that the potential involvement of the European Court of Justice is a red line—it is not; it is for the Minister, but it is not for the people in Northern Ireland.
It is overwhelmingly in the national interest to deal unemotionally with the problems in the operation of the protocol on the basis of the proposals now on the table. Can the Minister assure the House that he will finally put his sabre away and just get back to straight- forward negotiating?

Lord Frost: My Lords, I thank the noble Baroness, Lady Chapman, and the noble Lord, Lord Newby, for their reactions to my comments. I will try to deal with the points they raised systematically by subject.
On the initial point raised by the noble Baroness about the timing of the Statement, international business has its own timetable. Unfortunately, there are meetings and contacts the whole time which shape outcomes. It was our view that this was the most sensible moment to give a clear update in the best knowledge of the situation. We will continue to update the House at the right moment to keep it up to date with developments.
On the question of whether the TCA is working well, I think it is. That there are disputes over fisheries and Horizon does not change the fact that this vast agreement, the biggest anywhere, has come into effect with remarkably little difficulty. I have expressed before my scepticism—although I recognise that people can have different views—about some of the predictions of the economic effect of Brexit. I continue to be sceptical about the particular figure referred to by the noble Lord; I think we will see real life set this out in due course.
On fisheries, I thank the noble Baroness for recognising that the position that the French Government have taken is not reasonable; I do not think it is. That we are dealing with this question quite late in the year and the timetable is tight is of course because the French Government did not send the necessary paperwork for the applications to the Commission until June, half way through the year, and most of the evidence we needed arrived only in September. So, what is represented as a very long discussion is in fact quite a short one; most of the 1,800 licences that I referred to were given before the start of this year or in the first week of the year. We are doing our best and we proceed according to the evidence. Discussions are continuing this week and I am sure we will get to a fair outcome.
On Horizon, obviously, contingency planning takes place for all eventualities. We had hoped that it would not be needed, and I still hope that it will not be needed. I am very happy to set out in writing where things stand on this subject, because it is of huge importance to a large number of universities and research institutes, not just in this country but across Europe, which have an interest in collaborating with us. I repeat that much the best thing is if we can see that the treaty is delivered on, we are able to join and things can proceed as we expected. I still hope that can happen.
On Northern Ireland, there is a lot to say and some of it has been said before, but I repeat that, in our view, Article 16 is not inevitable—I want to be clear about that. It is much better to come to a negotiated agreement; that is the best way forward for stability, sustainability and prosperity in Northern Ireland. That is what we are working to do, but the safeguards are there if it is not possible to deliver that outcome. I am not concluding at the moment that that outcome is not possible; I think it is, and we are working hard to deliver it. Obviously, we look at the real-world situation in Northern Ireland and the stark division of opinion that is clear from the polling, and that shapes the situation we are dealing with. We think it is absolutely legitimate to use safeguards which were put in place for exactly this situation if that is the best way of supporting stability in Northern Ireland. However, let us see whether we can avoid that situation.
On legal advice, I think the noble Baroness would not expect me to disclose the details of legal advice and how the work of the Attorney-General is done, but I hope that she agrees that we would want her to have the best possible advice, reflecting the full range of opinion on these very sensitive and unprecedented questions. I think that is a reasonable expectation.
On the negotiation process, I do not think it is true that we—the UK and the EU—are growing apart in the negotiations. We have inched a little bit closer;  there has been some movement, and that is good. We just are not moving together quickly enough, and the gap is still an extremely wide one. However, there has been some incremental progress. It was our hope that that could have been quicker and more substantive, but we are trying.
I do not think it is true that, as the noble Lord, Lord Newby, said, the EU proposals offer a satisfactory solution to the problem that we now face. As I said, we will set out our view on that in detail in due course. For example, they do not eliminate a single customs declaration for any good moving into Northern Ireland. The famous 50% figure is actually a 50% reduction in the number of fields in the customs declaration, with most of the significant ones still remaining—it is not a 50% elimination of process. On medicines, we still do not have a situation that deals with the reality of the fact that the regulator in Northern Ireland is not the MHRA but the EMA, so there is clearly a risk of divergence and not being able to deliver medicines to the whole country—and we have to deal with that. So they make progress, but they do not take us the whole way there.
To repeat, we would like to get to an agreement. We are working hard to get to one, and we talk to all ranges of Northern Ireland opinion. I spoke only yesterday to the First Minister and the Deputy First Minister to update them on the talks, and we continue to proceed in a way that we hope will make the best progress. I do not think that the threats that are swirling around of a reaction to Article 16 are in any way helpful, but obviously that is the business of the European Union.
I conclude that we want to find a solution to this. It is obvious that the protocol is not the only possible solution to the set of problems that are presented to us in Northern Ireland. There are other solutions and possibilities—we set them out in our Command Paper—and we still think that that would be the best way forward to provide a sustainable, stable solution in everybody’s interests in Northern Ireland.

Baroness Ritchie of Downpatrick: My Lords, I thank the Minister for his Statement. Last week, in our protocol committee we took evidence from the University of Liverpool, which produced the results of its survey. That survey was quite clear: that issues to do with Covid and health waiting lists were more important to the people of Northern Ireland than the protocol. As somebody who lives there, I can say that nobody talks about the protocol that I can hear of. Only this morning, Stephen Kelly from Manufacturing NI said that there were many benefits from the protocol. It is very important that there is a negotiated solution to the protocol. Does the Minister agree that invoking Article 16 now would not solve any economic or political problem and that such a step would undermine political stability in Northern Ireland, something that was very hard-won on all sides?

Lord Frost: My Lords, I have looked very carefully at the polling produced by the University of Liverpool. It is inevitable that at the top of people’s  agenda, in almost any poll, would be questions such as health, education and day-to-day issues. I do not think that that distracts from the fact that the protocol is self-evidently a major issue in Northern Ireland’s politics. What I took from that and other polling I have seen is the high level of division on the question of the protocol. There is a very clear division in most polls about support for the protocol or a wish to change it. In the environment of Northern Ireland, that very stark division is what makes things difficult. Obviously, I do not agree that triggering Article 16 would undermine stability. We would do it only if it was necessary to support stability in Northern Ireland. It is a safeguard and should be seen in that context.

Lord Cormack: Will my noble friend remember that wonderful quotation on Harold Macmillan’s desk that
“Quiet, calm deliberation disentangles every knot”?
Will he go very carefully indeed? We have only to look at today’s Order Paper, with business on Bosnia-Herzegovina and the Question that we had earlier on Russia and Ukraine, to realise that, daily, the world is getting a more dangerous place. The worst thing that we can do is to fall out with long-standing friends and neighbours in Europe. We must work together with them. Will my noble friend do everything he can to lower the temperature and increase the amity?

Lord Frost: My Lords, obviously I agree with my noble friend’s question. I said in my Statement that the West needed to think about what it had in common, for exactly these reasons—and that is really important. Of course we want to be friends and have friendship with our European neighbours; that is absolutely clear. But that does not mean that we must accept every proposition that they put forward. We have our own interests and we need to protect them, in Northern Ireland as well as elsewhere. I think we try to proceed with quiet calm, as my noble friend says. It is not us that are making threats about the TCA and not us that are making threats of retaliation against France.

Noble Lords: Oh!

Lord Frost: I think there is a difference between a legitimate provision in a treaty, which is Article 16, and threats to do things outside the treaty, which are the threats that have been made to us in the last few weeks. I think both sides need to look at this, retreat from the positions that the EU and France have put out, and try to find that quiet calm to which my noble friend refers.

Lord Foulkes of Cumnock: My Lords, further to the question asked by the noble Lord, Lord Cormack, the main purpose of today’s Statement seems to have been to reinforce the threat to trigger Article 16. How does the Minister think that such blackmail tactics—because that is what they are—will make a negotiated settlement more likely?

Lord Frost: I repeat what I have already said: threats have been made by both sides. Our position is unchanged; I made that clear in the Statement. Our position is to try to find a negotiated settlement.  That is what we would prefer to do. Article 16 is a legitimate instrument in the treaty, which has been, albeit briefly, already activated by the EU and withdrawn. If we think that Article 16 is the best way of preserving stability in Northern Ireland, obviously it is an instrument that we will use. However, I repeat, it is not our preference.

Lord Robathan: My Lords, earlier today we were discussing the question of the hereditary Peers’ by-elections and how it might diminish the opinion of the great British public of this House. Actually, the great British public neither knows nor cares about it, but never mind. Does my noble friend the Minister consider that what does diminish the standing of this House in the eyes of the general public is the non-stop criticism in this House of his position—which is a very difficult position—from people on the other side who have yet to reconcile themselves to the fact that the British public voted to leave the European Union? Does he find that this sniping and nit-picking is helpful to his position, or does he find that perhaps it gives succour to his negotiating partners in the EU, who believe that this may represent somebody— whereas actually it represents none of the British people at all?

Lord Frost: My Lords, obviously I very much agree with the thrust of the question. There is a lot of commentary about the situation in Northern Ireland that does not engage with the reality and facts of the question but is a sort of proxy fight about a question that is settled. It would certainly make our job easier if we could look at the national interest questions that are at stake here, and at the need to provide stability and prosperity in a very troubled part of our country, and make our position in trying to defend that easier to push forward.

Lord Morrow: The Minister has said here today that the talks are not at an end yet, but I am sure that he is very conscious—as we are, back in Northern Ireland—that every day the talks go on costs the Northern Ireland economy countless millions of pounds. I hope that he takes that into account. The noble Lord, Lord Newby, said that the people of Northern Ireland do not want Article 16 triggered. I will tell the House what Northern Ireland does not want: any trade barriers between Northern Ireland and GB. That is what it does not want.
Further, the protocol disrespects the very delicate constitutional balance—this is at the heart of the agreement, we are told. It undermines Northern Ireland’s relationship with the rest of the United Kingdom and it is not acceptable to any of the unionist parties in Northern Ireland. I ask this House to take cognisance of that. Why is it that only one side of the community has to be respected and not the other side? I ask the Minister: as the conditions now exist very clearly for the triggering of Article 16, why has it not been triggered?

Lord Frost: My Lords, I think the exchanges that we have had in the last few minutes show the point I was making earlier: that there are in fact starkly divided views in Northern Ireland about these questions. That is why it is impossible to make an  instrument such as the protocol work effectively, in the way that the EU insists that it be implemented, when those very stark divisions exist. We need to find a solution that everybody in Northern Ireland can get behind and which supports the delicate balance in the Belfast/Good Friday agreement, which was so painfully negotiated and which is the key to peace in Northern Ireland.
I very much sympathise with the points that were made on timing. Trade diversion is obviously happening every day and is very much on our mind, but we think that the responsible thing to do is to do everything we can, push as hard as we can and explore every possible avenue in and around the talks to see whether we can find an agreement that everybody can get behind. That will be my aim until I have concluded that it is impossible—and we are not at that point yet.

Lord Purvis of Tweed: My Lords, page 58 of the OBR report states that UK GDP will be 4% lower as a result of the agreement negotiated by the noble Lord, Lord Frost. Page 59 of the OBR report states that trade—both imports and exports—is now 15% lower. The Minister said that he was “sceptical” of this and would be presenting his own figures. The Chancellor’s entire Budget and spending review were based on the OBR figures—so should we all now have a high degree of scepticism about the Chancellor’s statement and spending review? Will the Minister join us in scrutinising that set of figures, to show that we should not believe them?

Lord Frost: My Lords, I do not think that I said that I was planning to present my own figures in this respect, merely that I was sceptical about the many judgments that had been made officially about the state of the economy in 2030—which I think is the 4% judgment—which is a long way out, and many things can happen, including policy changes that we will make to ensure that that situation does not develop. That is the way that I look at this problem.

Lord Liddle: My Lords, does the Minister accept that we are not here debating Brexit; we are debating his threat to detonate the Northern Ireland protocol in an agreement that he negotiated and signed? This has nothing to do—as the noble Lord, Lord Robathan, claims—with Brexit itself. Does he also recognise that while unionist sensibilities of course have to be recognised, we are dealing here with the long and painful history of the Irish question? There was not a single mention in his Statement of relations with the Irish Republic and how many people in the Irish Republic believe that this is a threat to the Irish Republic’s place in the single market and an attempt to force it out of it. What is his reaction to that? I urge him to stop posturing and get on with negotiating. The EU has moved a long way; how much has he moved?

Lord Frost: I thank the noble Lord for his advice; I am certainly taking it, in that we should carry on negotiating—that is what we are trying to do, including this week and, I hope, beyond it. I repeat that Article 16 is a legitimate provision within the protocol. It has already been exercised once, and we  cannot be in a position where it is not possible to exercise a legitimate provision in the protocol. That is simply not a reasonable position to take.
On the question of Ireland, we have made clear—I have said in this House on a number of occasions—that we do not wish in any way to threaten Ireland’s place in the single market. Nothing that we have proposed would do that. We have proposed measures that would protect the single market while allowing trade to flow freely throughout the United Kingdom. We have no wish to do that and nothing in what we have proposed can be interpreted as such; I want to be absolutely clear on that point.

Lord Empey: My Lords, I hope that the noble Lord succeeds in his negotiations but, irrespective of how many times he triggers Article 16, should that happen, it in no way replaces the protocol. In other words, there is the feeling in some unionist quarters in Northern Ireland that if we trigger Article 16, we will get a new deal. We are not getting a new treaty or a new protocol; we are merely amending it. It is a negotiation within it, so it is a mirage that triggering Article 16 is a solution.
Will the Minister also consider the fact that those of us who live there and have our political background there are, effectively, totally excluded from this process when we have solutions to put in place, based on the Belfast/Good Friday agreement, which would avoid a lot of the problems that we have currently? Would he be kind enough to address that and confirm that no triggering of Article 16 replaces the protocol?

Lord Frost: The noble Lord makes an extremely important point. I have said before, and say again, that Article 16 is not an on/off switch for the protocol. It is not a sort of self-destruction mechanism for the protocol; it is a safeguard. There are constraints on what can be done with a safeguard. The legal limits of it are to be defined but, if you use Article 16, it is clear that you are left with a protocol with safeguards operating. That is why we find it so difficult to really understand the volcanic reaction that we get to the suggestion of using the safeguards provisions. It is a safeguard, and it is designed to support stability and ensure that the protocol fulfils its task of supporting the Belfast/Good Friday agreement. If we do use the safeguard and Article 16, that will be the spirit in which we do so.

Baroness Neville-Rolfe: My Lords, I am grateful to my noble friend the Minister for giving us an update, and for doing so in prime time, not at 7.30 pm. I also refer to the helpful reply that he gave to the noble Baroness, Lady Chapman of Darlington, about contingency arrangements on R&D. Could he talk more widely about contingency planning in the event that Article 16 had to be triggered? What conversations have he or his officials been having with interested businesses and Northern Ireland interests, about, for example, the impact of any tariff or bureaucratic changes that the EU might implement here or on the island of Ireland, and what we might do by way of response?

Lord Frost: I thank my noble friend for the question. We are beginning that process. Obviously, we do not wish to pre-judge whether Article 16 is used and, as I said, we want to proceed with predictability, certainty and clarity, setting out the case if we do use Article 16, so there will be time to adapt and to deal with any measures if it comes to that point. We wish to provide legal certainty, clarity and the ability to deal with the situation and not to produce instability with sudden changes or surprise mechanisms. Predictability, clarity and certainty are the watchwords.

Lord Adonis: My Lords, has the Minister noted that polls now show a lead of about 10% for Sinn Féin in Northern Ireland and the Republic of Ireland? Does he think that that might have something to do with his Brexit policy over the last few years? How much higher does he think that lead might go if he, as my noble friend Lord Liddle says, detonates the Northern Ireland protocol, triggers Article 16 and begins a long trade war with the European Union?

Lord Frost: It is probably not helpful for me to get into speculating about what polls may or may not show about outcomes months or years from now. To be honest, I am not sure there is a very direct connection between our Brexit policy and the rise of Sinn Féin in Ireland, which I think is due to quite a wide range of other factors and has parallels with what is happening across Europe. However, I defer to the noble Lord’s judgment; he has been to the Sinn Féin conference and I have not.

Lord McCrea of Magherafelt and Cookstown: My Lords, the protocol continues to damage the economy and political stability in Northern Ireland, but some Members in this House seem oblivious to that fact. Does the Minister accept that the Government must fully restore Northern Ireland’s position as a full part of the internal market of the United Kingdom? Does he also accept that the people of Northern Ireland cannot continue to be subject to laws in Northern Ireland on which they have no say or input? The status quo is not an option.

Lord Frost: My Lords, those are very good points. They are based on the fact that, ultimately, the protocol says that Northern Ireland’s position in the UK’s internal market must be respected and that it is part of the UK’s customs territory. That must be read alongside other provisions in the protocol, but we are not convinced that those requirements are being respected in the way that is necessary if we are to ensure that they are more than a dead letter. That is why we have proposed measures that would rebalance the protocol, support the balance of the Good Friday agreement and take us to a better place.

Police, Crime, Sentencing and Courts Bill
 - Committee (7th Day)

Relevant documents: 1st, 2nd, 4th and 6th Reports from the Delegated Powers Committee, 7th Report from the Constitution Committee.

  
Clause 79: Deciding on the conditions

Amendment 172

Lord Brooke of Alverthorpe: Moved by Lord Brooke of Alverthorpe
172: Clause 79, page 74, line 2, after “offence,” insert “and the details of any financial costs they incurred as a result of the offence,”Member’s explanatory statementThis amendment provides the victims with the opportunity to register their financial losses and seek compensation.

Lord Brooke of Alverthorpe: My Lords, in moving Amendment 172, I will also speak to Amendments 173, 177, 179, 180 and 186, to be inserted after Clause 79. These are about victims’ financial losses, which can often arise as a result of an assault on their person, their property or their belongings. The amendments seek to ensure that the authorities and the perpetrators are made available of these costs and that, in turn, where possible, there might be some restitution for these innocent people whose property and goods have been attacked.
I bring the issue to the Committee’s attention based on a most unfortunate and regrettable experience of a friend of mine, Mr James McAra, who lives just outside Scunthorpe. He was at home watching television on the evening of 13 September this year in his house at Ashby. He was alone—he is a widower, aged 78 years, who has lived there for 55 years. He has brought up his family; they have all flown the nest and he is left alone. At 10 pm, his life was changed. There was a terrific crash outside the house, then suddenly his windows were smashed in and his front door was crashed down. Five masked, armed men with sledgehammers appeared in the house. He confronted one of them, who then gave him a push and shouted to his accomplices, “Oh fuck, it’s an old man. We’ve got the wrong effing house.” With that, they turned around, ran out and left him in a terrific state of shock. In the event, it turns out that the noise outside had been the smashing of his car with sledgehammers. It was so badly damaged that it has had to be written off.
As noble Lords can imagine, this is a most distressing experience—an attack and assault—for a man of such an age. The police arrived promptly; by all accounts, they were excellent and knew straightaway what had happened. The two houses next door had been raided on numerous occasions over the last two years in relation to drug dealing, and only two months earlier a young man had been found dead in one of them. The police believed that the attack on his property was intended for one of those houses, related to the ongoing drugs problem. This couple of houses, with numerous instances of anti-social behaviour, has made this once peaceful street a nightmare to live in. As a consequence, James is now considering moving because of this sickening experience and attack.
I turn to the amendments. To compound matters, Mr McAra is well out of pocket from this experience. The car insurance in no way covers the cost of the replacement car he has had to get. Then he has had to pay the excesses on the house insurance for new doors  and new windows, and he has now been told that his future insurance premiums on his car and his property—the lot—will go up next year. Where is the justice for a victim of this kind?
I suspect that the chance of getting some reparations from the attackers, if they could be found, arrested and convicted, is quite a long shot. However, we have been disturbed to learn that it is not always understood by the authorities what the total cost has been and that there is no formal request for a record of the costs that might arise, in a variety of different ways, when someone is attacked in this way. Obviously, a requirement for conversations with the victims is laid down and victim support is offered, but financial losses are not necessarily recorded. I believe, and I am sure noble Lords share this view, that they should be. They should be taken into account in determining punishments and, if it is possible to get restitution, they should be known factors taken into account for that purpose.
Having heard this story, I am sure that noble Lords, like me, feel that it is time for some changes to try to give further assistance to victims. Mr McAra’s constituency MP is Holly Mumby-Croft, a Conservative MP who knows all about these facts and has been as supportive as she could be in the circumstances. She has been advised that these amendments will be put before the Committee today and, in due course, we are hoping they will be adopted and go back to the Commons. I think she is hoping that she can look for a sympathetic hearing from the Front Bench today. For positive action, in adopting these amendments, which will cost little to implement, we must go some way towards actually making changes. The amendments before us would facilitate such changes. On behalf of victims affected in this way, particularly Mr McAra, I have great pleasure in moving this amendment.

Lord Paddick: My Lords, the noble Lord, Lord Brooke of Alverthorpe, has relayed to the Committee clearly a very distressing case of mistaken identity and anti-social behaviour generally in that street, apparently to do with drug dealing. If the perpetrators of this terrible crime were found, I am not sure that they would be given a caution, and I thought this part of the Bill was about police cautions—but I accept the general point that victims need to be protected. Although a caution would not be applicable in this case of the break-in at the home and the damage to the car, there might be one in respect of the general anti-social behaviour in the street. It is absolutely essential that the needs of victims are taken into account by the police, including for the financial losses that victims have suffered.
As I said on a previous group, out-of-court settlements have a high victim approval rating already. These amendments, in so far as they apply to police cautions, would ensure that they remain high, and to that extent we support them.

Lord Ponsonby of Shulbrede: My Lords, I agree with the points that the noble Lord, Lord Paddick, just made. I also think that Mr McAra should be very grateful to my noble friend Lord Brooke for raising the points about the lack of a formal record of the cost of the incidents. I agree with the noble Lord,  Lord Paddick, that it seems very unlikely that anyone would get a caution for this sort of offence. Even if it got to court, there would be an obligation on the sentencing court to consider compensation, because one has to consider this whenever one sentences an individual. Nevertheless, my noble friend has raised an interesting question and I look forward to the Minister’s reply.

Lord Carlile of Berriew: I hope I can be forgiven for intervening slightly out of order. I have been thinking as I listen to this debate about the very troubling case which the noble Lord, Lord Brooke of Alverthorpe, raised, but I am not sure that what he is looking for is germane to this clause. However, there is an issue of general principle about unrecovered, uninsured losses arising from a serious crime of violence which does not cause considerable personal injury.
If there is an injury that would attract damages of £1,000 or more, some ancillary costs are payable under the criminal injuries compensation scheme. This raises in my mind that perhaps the Government should look at something like the Pool Re reinsurance scheme, which applies to claims which are uninsured as a result of terrorism events. The underinsured or uninsured person can go to this entity, which has been set up jointly by the public and private sectors, and recover the cost of damages for what has occurred outside the insurance scheme. I suggest to the Minister, who is an extremely experienced lawyer, that perhaps the Government should look at the criminal injuries compensation scheme and the Pool Re scheme and try to produce something which would deal with quite a significant number of cases which probably do not involve a massive amount of money, but in which people who are not very well resourced suffer a great deal, and disproportionately, as a result of the kind of offence that the noble Lord described.

Lord Wolfson of Tredegar: My Lords, this group of amendments, proposed by the noble Lord, Lord Brooke of Alverthorpe, seeks to require that reasonable steps be taken to obtain and take into account details of any financial costs incurred by the victim as a result of the offence when deciding on the conditions to attach to a caution and when deciding on the amount of the financial penalty.
I will begin with the particular instance that the noble Lord set out. Both he and the noble Lord, Lord Paddick, used the word “distressing” and I agree with that entirely. I would go further and say that it was appalling; it is a horrific set of circumstances and I am sure everyone in the Committee would share that approach. I extend deepest sympathies to Mr McAra. I am very pleased to hear that his local MP has been helpful and supportive; I was also pleased to hear that she is a Conservative, although one of the glories of our parliamentary system is that all MPs from all parties extend that sort of support to their constituents. It is very good to hear that the system is working.
I also tend to agree that this would be unlikely to be a caution case. I am hesitant to say any more, because prosecuting decisions are independent and a matter  for the CPS. I defer in this regard to the experience of the noble Lord, Lord Paddick, but it sounds to me as though this would be more than a caution case.
The Bill states that both the diversionary and community cautions must have conditions attached to them. Those may include rehabilitation and reparation conditions, financial penalty conditions or conditions related to certain foreign offenders. I assure the noble Lord, Lord Brooke, that I give this amendment and the points that he made a sympathetic hearing, as he wanted, but I will explain why as a matter of principle we cannot accept it. This is not because we disagree with the point that underlies it but for the reasons which I will set out. The starting point is that Clauses 79 and 88 already provide for the authorised person to make reasonable efforts to obtain the views of any victim of the offence and take those views into account when deciding on the conditions to be attached to a caution. This includes obtaining their views on financial costs incurred and any decisions on seeking compensation.
Under the current cautions regime, the code of practice for conditional cautions makes clear provision for this in specifying that financial compensation may be paid to a victim. In addition, where the offending has resulted in damage to community property—I appreciate that in the case we have discussed the damage was to personal property—reparation may also take the form of repairing the damage caused, reparative activity within the community more generally or a payment to a local charitable or community fund, which might be more helpful if an offender does not have the financial means to pay. The current code also states that compensation for the victim should be prioritised ahead of other costs or financial penalties.
As is the case with the current code of practice for conditional cautions, the code of practice for the new diversionary and community cautions is the appropriate place to set out further detail on how the conditions attached to a caution may be decided. Again, that will include obtaining and considering any financial losses and requests for compensation. The code will be drawn up under the delegated powers in the legislation. We will consult widely, as the noble Lord would expect, and it will be laid under the affirmative procedure.
Consulting victims goes beyond just cautions. It is a key principle of the victims’ code, point 6.7 of which says:
“Where the police or the Crown Prosecution Service are considering an out of court disposal you have the Right”—
that is, the victim has the right—
“to be asked for your views and to have these views taken into account when a decision is made.”
As I have sought to explain, that will encompass the financial circumstances as well.
Finally, without wishing to be too particular on the drafting but just for the record, I point out that, although the parts of Amendments 177 and 186 relating to Clauses 81 and 90 share the same underlying intention, those clauses relate to financial penalties paid to a court, which are punitive and are not the same as the rehabilitative or reparative conditions, which I know are really the focus of the noble Lord’s amendment.
Before I sit down, I will briefly pick up the point made by the noble Lord, Lord Carlile of Berriew. He raised an interesting point of principle, which I am happy to look at and consider. My immediate reaction is that there may be a principled distinction between these cases and cases of terrorism, for which it is difficult to obtain insurance at all. There may be a difference in principle between an uninsurable risk and an uninsured risk or the cost of insurance going up. That said, I am happy to look at the point; no doubt we can have further discussions on it. I am conscious that it might be another government department that has responsibility in that area.
I hope that I have responded fully to the amendment of the noble Lord, Lord Brooke. For the reasons that I have set out, I respectfully ask him to withdraw his amendment.

Lord Brooke of Alverthorpe: My Lords, I am grateful to everyone who has contributed. As noble Lords probably gathered, I was looking for a peg on which to hang my hat. I am pleased that I found a peg and I found someone who was prepared to cast a hat on it as well—I am grateful to the noble Lord, Lord Carlile, for finding a possible solution.
There is a problem and it should be addressed. People should not be out of pocket. The cost is not just in respect of the one year when they have the incident. If an insurance policy goes up, it goes up and it stays up; it is an ongoing cost to the individual. I am grateful to the Minister for saying that he will have a look at this, so if there is an opportunity to find a way through I am happy to leave it for now and see if we can have a conversation to find a way for victims to be given the proper compensation for the problem that they have encountered. In the meantime, I beg leave to withdraw the amendment.
Amendment 172 withdrawn.
Amendment 173 not moved.
Clause 79 agreed.

  
Clause 80: Rehabilitation and reparation conditions

Amendment 174

Lord Paddick: Moved by Lord Paddick
174: Clause 80, page 75, line 1, leave out subsection (8)Member’s explanatory statementThis amendment removes the subsection which allows the maximum number of hours attached to the unpaid work condition and the attendance condition to be amended by regulations.

Lord Paddick: My Lords, I will also speak to the other amendments in this group. The Committee has already considered these issues, so I can be brief. I apologise for not recognising that some of the amendments in a previous group covered similar issues.
In that previous group, the noble and learned Lord, Lord Falconer of Thoroton, suggested that the maximum number of hours attached to the unpaid work condition and the attendance condition, and the maximum fine that could be attached to a caution, should be set in  the case of the fine and varied in all cases by regulations and that those should be amended only by the affirmative resolution procedure. The noble and learned Lord previously said in Committee that this was not an ideal solution, as regulations could not be amended and that this House was reluctant to use the “nuclear option” of praying to annul regulations, which is the only option available if it disagrees with a statutory instrument. Even with the affirmative resolution procedure in place, in practice, if the House disagrees with an increase to the maximum number of hours of unpaid work—or any of the other conditions attached to police cautions—there is little that it can do about it, unless changes are made through primary legislation.
I grant that the value of money is eroded over time by inflation and periodically the maximum fine capable of being attached as a condition to a caution may need to increase accordingly, but surely not the amount of time to be spent in unpaid work or subject to the attendance condition. There is a question of principle. If an offence is so grave that greater punishment is required, that should be a matter for the courts and not for a police officer to decide. There is precedent in our legal system for this principle. If magistrates want to impose a harsher sentence, they must refer eligible cases to the Crown Court, where a more senior judge can make a decision with more serious consequences.
When I joined the police service in the 1970s, the police performed the role of both investigator and prosecutor. Parliament then decided that prosecution decisions should be made by an independent body, the Crown Prosecution Service, for very good reasons that I do not need to rehearse here, while punishment of the individual has primarily been a matter for the courts, supported by reports from experts on the medical, social and criminal antecedents of the accused, in many cases, and considered by highly trained and experienced judges who are obliged to follow sentencing guidelines. In the proposals contained in this part of the Bill, the police are investigators, prosecutors and sentencers. There must be limits on the extent to which they should be allowed to carry out all three functions in relation to a case and those limits should be set out in primary legislation, on the face of the Bill. That is the purpose of these amendments and I beg to move Amendment 174.

Lord Ponsonby of Shulbrede: My Lords, I listened with interest to the noble Lord, Lord Paddick. As he says, in this part of the Bill the police are investigators, prosecutors and sentencers. They also decide whether the matter should be sent to the CPS, with the people charged and sent into the court system. Of course, once the case gets into the court system, magistrates are judge, jury and sentencers. There are different roles at different stages of the system. The burden of the amendments in the name of the noble Lord, Lord Paddick, is in some way to codify, limit and guide the police when they are doing this pre-court intervention with the type of cautions set out in the Bill. I look forward with interest to the Minister’s response.

Lord Wolfson of Tredegar: My Lords, I thank the noble Lord, Lord Paddick, for putting forward this group of amendments. If I can put it this way, the  noble Lord realistically recognised that we have covered some of this ground before—not this particular issue but the conceptual underpinning on which it is based. I hope, therefore, that the Committee and the noble Lord will not take it amiss if I reply relatively briefly, because we have covered some of the points before.
Amendments 174, 176, 182 and 185 relate to the delegated powers contained in Part 6. The amendments propose to remove the clauses that allow the maximum amount of the financial penalty and the maximum number of unpaid work and attendance hours to be specified in regulations and would replace that by putting the details in the Bill. Amendments 175, 183 and 184 set out that the maximum penalty attached to a caution would be fixed at £200 and would make it explicit that an offender’s ability to pay must be taken into account.
The Bill contains powers to set and amend the amount of the maximum financial penalty and to amend the maximum number of unpaid work or attendance hours by regulations via secondary legislation. As I explained on a previous occasion, it was drafted that way to ensure maximum flexibility when responding to the needs of operational practitioners. Any changes to these regulations will be subject to parliamentary scrutiny in the normal way, but removing the delegated powers in their entirety, which is what Amendments 174, 176, 182 and 185 would do, would mean that there is no flexibility to amend either levels of financial penalty or the number of unpaid work hours. If we have the maximum financial penalty on the face of the Bill, to change it or update it, whether because of inflation or anything else, we would have to have to come back to primary legislation. I respectfully suggest that that is not a great use of parliamentary time.
Finally, as to the matter of whether the offender’s ability to pay should be explicitly set out in statute, of course it is a relevant factor, but we believe that this—alongside a range of other relevant factors around giving a financial penalty, the amount that it is set at and how quickly it is going to be paid—is better set out in detail in a statutory code of practice rather than in the Bill. With apologies for taking that a little shortly, I invite the noble Lord to withdraw the amendment.

Lord Paddick: My Lords, I thank the Minister for saying something. The whole point of not allowing it to be in regulations is that it is an important question of principle that once a crime gets to a certain level requiring a certain punishment, it should be for the courts to administer that punishment, in the same way that if a magistrate decides that the punishment they are able to give is not sufficient, they have to refer it to a higher court. These are the people with the experience, training and background properly to assess both the individual and the circumstances, and to apply the penalty. Therefore, it should be dealt with in primary legislation.
This should not be about providing maximum flexibility for operational partners. It should be about consistency and certainty, and citizens knowing that above a certain level of unpaid work, attendance at a training course or a fine imposed by the police, they cannot go without referring the matter to the courts. That is the whole  point. I completely accept that the Minister has explained why it is in regulations and not in the Bill. However, he has not addressed at all the argument that it should not be that flexible.
Why is the accused’s ability to pay important? I was talking to my noble friend Lady Randerson about this amendment earlier today; like the noble Lord, Lord Ponsonby, she is an experienced magistrate, now retired. She said, “It is so important to take into account the accused’s ability to pay, because if you impose a fine, say, of £200 on somebody who has little or no income, it will almost guarantee that they commit a crime in order to get the £200 to pay the fine.” That is why that seemingly innocuous addition, which should be in the Bill, is in fact absolutely important. In the light of the Minister failing to engage with the heart of the amendments, we will return to this issue on Report, but in the meantime, I beg leave to withdraw the amendment.
Amendment 174 withdrawn.
Clause 80 agreed.

  
Clause 81: Financial penalty conditions

Baroness Garden of Frognal: If Amendment 176 is approved, I cannot call Amendment 177 by reason of pre-emption.
Amendments 175 to 177 not moved.
Clause 81 agreed.
Clauses 82 to 85 agreed.

  
Clause 86: Application of Police and Criminal Evidence Act 1984

Amendment 178

Lord Paddick: Moved by Lord Paddick
178: Clause 86, page 78, line 17, leave out subsection (4)Member’s explanatory statementThis amendment is to probe the effect of subsection (4).

Lord Paddick: My Lords, by way of a little light relief for the Committee, I rise to move Amendment 178 in my name.
In this part of the Bill, “Part 6—Cautions”, Clause 86 deals with:
“Application of Police and Criminal Evidence Act 1984.”
On page 78, at line 17, Clause 86(4) states:
“Section 40 of the 1984 Act (review of police detention) applies to a person in police detention by virtue of section 85 above as it applies to a person in police detention in connection with the investigation of an offence, but with the following modifications—
(a) omit subsections (8) and (8A);
(b) in subsection (9), for the reference to section 37(9) or 37D(5) substitute a reference to the second sentence of section 85(6) above.”
Can the Minister please explain to the Committee what that means? We do not have the foggiest idea. Legislation is supposed to be capable of being understood by those to whom it applies, but this is incomprehensible to us, let alone to the poor police officer who has to apply it or the poor accused who may be subject to it. That is provided that I have the gist of what this whole thing is about, and it actually applies to police officers and the accused. However, I beg to move.

Baroness Hamwee: My Lords, does the Minister think that the Bill is so short that it would have spoiled it if the new provisions had been set out in full?

Lord Wolfson of Tredegar: My Lords, taking that last point first, one of the glories of our system is that the drafting is done by parliamentary counsel, and I will not criticise the way it has been done. However, I agree with the underlying point made by the noble Lord, Lord Paddick, that legislation ought to be—

Viscount Hailsham: Comprehensive.

Lord Wolfson of Tredegar: I was going to say “comprehensible” but that is a pretty high test— perhaps “as clear as good legislation can be”. I have to leave at least some space for my former colleagues at the Bar to have a career; if we make it too precise, we will do people out of a job. However, there is a serious point here, and I agree with the noble Lord, Lord Paddick, that legislation should be as clear as possible. I will set out what the words are seeking to do, and if it is thought that there is a better way of putting them to get to the same result, obviously, I will be happy to hear it. However, let me explain what they seek to do.
Clause 86 sets out the provisions of PACE and the modifications required to them that will apply upon arrest for failure to comply with any condition attached to a diversionary caution. The purpose of the clause is to ensure that the diversionary caution operates effectively within the existing framework of police powers; it mirrors the approach taken in the Criminal Justice Act 2003, which gives the police powers of arrest for failure to comply with the existing conditional caution.
The subsection of this clause ensures that someone arrested and detained by the police is subject to the same treatment as any detained person, and periodic reviews of their detention are carried out. Obviously, that is important. The same subsection also contains modifications to put specific matters in the Bill: the power to detain those who are unfit to be dealt with at the time of arrest; the power of arrest for detainees bailed for any breach—that is, non-compliance; and the power to search a detainee in police custody following arrest.
The modifications make specific reference to the diversionary caution. For example, the PACE power to search and examine a detainee to ascertain their identity is modified to ensure that the power will still exist where a detainee has failed to comply with any of the conditions attached to the person’s diversionary caution. Therefore, it provides—I was going to say “clarity” but perhaps that might be pushing the point  a little—that these powers apply only to the diversionary caution and not also to the community caution, where there is no power of arrest or prosecution for non-compliance. That is why Clause 86(4) is needed. Without the necessary PACE provisions as modified, the powers for police to deal with breaches of a diversionary caution would be limited and that would undermine the effect of non-compliance with the conditions.
I do not know whether what I have said has reassured the noble Lord, Lord Paddick, that the clause is properly focused. I hope that I have explained what it is trying to do. I am not being flippant and I do appreciate that legislation needs to be as clear as possible and that it is important that people understand what it encompasses. However, when one is legislating against the background of other legislation, it can be quite difficult to do it other than by cross-references back. If there is a better way to achieve the same result without adding pages and pages, I should be very happy to hear it, but I hope that I have explained what the clause is focused on and why it is drafted in the way it is. I therefore invite the noble Lord to withdraw the amendment. However, I am happy to discuss this matter between us if there is another way of doing it.

Lord Paddick: I am very grateful to the Minister. Perhaps I may gently suggest that if something akin to what the noble Lord said was contained even in the Explanatory Notes explaining that part of the Bill, we would not have to spend time in Committee trying to understand what it was about. I know that my noble friend Lady Hamwee and I have looked everywhere possible to try and decipher what that meant—to no avail. It may be that to parliamentary draftspeople it is as clear as day—but for us lesser mortals it is not. I beg leave to withdraw the amendment.

Baroness Hamwee: My Lords, before my noble friend withdraws his amendment, I should say that he is quite right. There are a number of different points at which it is important for people to understand what legislation means. For us looking back at legislation, we can do so online and it is important that the changes go up online as soon as possible, including in the previous legislation. This is quite a serious point that is, of course, much broader than the Bill—but I am going to infuriate the Committee by getting it off my chest. One can spend an awful lot of time trying to understand what a piece of legislation, passed 20 years ago and amended five times, actually amounts to unless what is put online is completely up to date. It wastes an awful lot of noble Lords’ time and must waste Ministers’ time trying to get their heads around it if the Explanatory Notes do not set out those things intelligibly.

Lord Paddick: I beg leave to withdraw the amendment.
Amendment 178 withdrawn.
Clause 86 agreed.
Clause 87 agreed.

  
Clause 88: Deciding on the conditions
  

Amendments 179 and 180 not moved.

Amendment 181

The Lord Bishop of Durham: Moved by The Lord Bishop of Durham
181: Clause 88, page 79, line 36, at end insert—“(c) make reasonable efforts, or ensure that reasonable efforts are or have been made, to ensure conditions include interventions to support the offender to desist from offending.”

Bishop of Durham: My Lords, I am moving the amendment in the name of my friend the right reverend Prelate the Bishop of Gloucester, with her permission, as she is, sadly, unable to be here. I declare her interest as Anglican Bishop for Prisons in England and Wales, and we are very grateful for the support of the noble and learned Lord, Lord Thomas, and the noble Lord, Lord Beith.
I should say first that, while there are many parts of the Bill with which I take some issue, I do by and large consider it a welcome feature of the Bill that it places a new emphasis and focus on diversionary and community cautions, and on simplifying the previous regime. Done well, these out-of-court disposals, with helpful conditions attached, can be an effective solution that strikes a balance between punishment, the protection of communities and supporting the offender to successfully seek restoration in their community.
However, it is an issue that the conditions attached to these cautions can be poorly conceived and become either unnecessarily restrictive or, indeed, not sufficiently rehabilitative in order to help people to avoid reoffending. This amendment is intended to improve and clarify what is already presented in the Bill by providing assurance that conditions attached to community cautions will
“make reasonable efforts, or ensure that reasonable efforts are or have been made, to ensure conditions include interventions to support the offender to desist from offending.”
That closely matches the wording in Clause 79(3), which insists on efforts to obtain the views of any victim or victims of the offence. Seeking the views of victims is a sensible objective, but it leaves this clause, “Deciding on the conditions”, rather lopsided. Attention is paid to who can set conditions and to the views of victims, but not to the most fundamental point, which is surely what impact these conditions have on the offender.
The critical point here is that community cautions are likely to be useful only if the conditions are effectively tailored to help offenders desist from offending. Key drivers of crime are poverty, mental ill-health, trauma and substance misuse. If conditions of cautions do not take steps to address those drivers, how can we reasonably expect to reduce reoffending? The alternative is simply to see the revolving door continue to spin, with the same offenders being trapped in cycles of offending, without the help they need to escape and rebuild their lives. Apart from being bad for the offender, this is obviously bad for victims and communities, who will continue to be impacted by reoffending. Only by restoring relationships and communities and providing the right support to prevent reoffending can we begin to really break this cycle.
I am very grateful to the Revolving Doors Agency for its briefings and support, and for its work with its new-generation campaigners. These are young adults with experience of the revolving door of crisis and crime, and discussions with them were around how they viewed conditions attached to cautions, what they found useful and what they did not find useful. Revolving Doors established that among the useful conditions were: attendance at drug and alcohol treatment to help break addiction cycles; meaningful, ideally accredited, unpaid work to build up skills and provide career options; family counselling sessions; and signposting to services to help with financial issues and poverty. All these conditions, critically, are designed to work with offenders to address underlying causes of their offending and provide them with meaningful alternatives that do not simply keep people trapped in the same cycles of criminal activity and the criminal justice system.
I hope that we might hear from the Minister of plans to extend and increase funding and support for such interventions, as I was rather disappointed not to see Dame Carol Black’s full recommendations for funding for drug treatment in the Chancellor’s Budget. You might also expect me to say that in the case of women’s offending we know that when a number of these things are provided through a holistic approach through a women’s centre, there are encouraging outcomes regarding reoffending.
I turn to the other aspect of conditions, which is about them sometimes being unnecessarily punitive without having any benefit. That is also highlighted by research from the Revolving Doors Agency and its work with its young new-generation campaigners in highlighting that not all conditions are useful or helpful. One campaigner told Revolving Doors of a condition where they were banned from public transport despite relying on it to get to school:
“I used to have get two buses to school, and then I was banned from public transport. How else was I meant to get to school? I was taken to court for still being on public transport.”
Other highlighted examples were conditions that were not tailored to the needs of the offender but seemed arbitrary or overly restrictive—almost as though they were being set up to fail.
One danger of the Bill as drafted is that since it is mandatory to impose conditions on these cautions, there is a risk of up-tariffing, with conditions attached that are more restrictive than necessary and actually undermine the ability of an offender to desist from crime. Indeed, the Centre for Justice Innovation noted that the Ministry of Justice’s two-tier out-of-court disposal pilot evaluation highlighted the dangers of up-tariffing within out-of-court disposals. It showed that, contrary to the principle of de-escalation, people who would have received simple cautions were given conditional cautions instead. Conditional cautions involved people having to complete more interventions than they otherwise would have done and came with the threat of enforcement in the case of non-compliance. That threat of enforcement is critical. There is little point to community cautions if the conditions are so onerous that many people end up breaching them and find themselves receiving a custodial sentence.
I stress again that the amendment looks to improve on the Bill. This clause already provides for several criteria for deciding on conditions—notably, the views of victims. It is a small and easy fix to ensure that a further criterion is to ensure that conditions make reasonable efforts to support the offender to desist from offending. I beg to move.

Lord Thomas of Cwmgiedd: It was a privilege to add my name to this amendment, which has been so ably moved by the right reverend Prelate the Bishop of Durham, speaking the words of the right reverend Prelate the Bishop of Gloucester. I associate myself with everything that has been said and particularly with the work being done by Revolving Doors and the Centre for Justice Innovation.
This particular amendment raises a problem with this part of the Bill. One can understand why putting in a condition or requirement in relation to the victims might appeal to a certain type of politician, but they forget that, if you are legislating, you need balance. Why put something in about victims without putting something in about the whole point of this, which is to try to deal with offending?
The reason that I put my name to this amendment goes to the way that the Bill has been structured. I apologise again for not being in my place last Wednesday. I am extremely grateful to the noble Lord, Lord Paddick, for moving the amendment that I put in. This point raises exactly the same problem: we have a framework Bill. We do not have the draft regulations or, more importantly, the draft code of practice.
I entirely support this reform, but I do not think that many people realise what a critical role cautions play in the operation of the criminal justice system and, as the noble Lord, Lord Paddick, has said in relation to an earlier amendment—I did not rise then because I thought that I could make the point now—the incredibly important constitutional and rule-of-law issues, which I underline. These relate to the relationship between the legislature, and how much detail it should go into on this, and the Executive—because the police are part of the Executive branch of government—and to what extent they should be allowed to punish, which has generally been the province of the courts.
I welcome these reforms because this is an important part of the sentencing regime—and it is part of it, whatever epithet one wishes to apply. But it seems to me that a much better approach to the Bill would be if this was brought together as a whole, so that we could say, “This bit ought to go into the Bill. That is dealt with in regulations. This should be dealt with in the code of practice”. We should have it all before us, so that we can make a sensible decision. I do not understand why this has not been done, but I hope that, before the Bill comes back on Report, we see draft regulations and a draft code of practice. Otherwise, we will all be plagued on Report with this type of really serious concern.
There are many more issues—the noble Lord, Lord Paddick, has raised some of them this morning—such as the point that the Minister made very eloquently this morning about being able to alter levels of fines. Of course, in an age where we are perhaps going to see  a lot of inflation, that is important, but why alter the number of hours? The gravity of the sentence with which a particular person should deal ought to be fixed.
Therefore, I hope that the Minister will look at, first, putting this amendment into the Bill and, much more seriously and importantly, at bringing the draft code of practice and the draft regulations, so that we could review the whole thing and do a proper job, as Parliament, consistent with the rule of law.

Lord Beith: My Lords, I am very glad to support the right reverend Prelate and the noble and learned Lord who has just spoken. The right reverend Prelate gave us a very careful analysis of the reasons that such an amendment would improve Clause 88 of the Bill, and the noble and learned Lord, the former Lord Chief Justice, reminded us of the constitutional context and the fact that the way that the Bill is structured, and the sheer complexity of it, are not really very satisfactory, especially when so much related material is not available to us at this stage. I hope that note will be taken of what he said on that latter point.
My feeling was that, as drafted, Clause 88 does not cover the ground properly, and that the inclusion of the requirement in this amendment—that consideration should be given to what provisions can be made for the “offender to desist” from crime in the future—would give the clause a necessary balance; a phrase that the noble and learned Lord used. The clause’s emphasis is very much on finding the victim’s views, which is entirely appropriate but limited in scope.
It is of course relevant to remember that, very often, one of the strongest views that victims have is that no one else should have to suffer what they have and that something should be done to make sure that the person who has done it does not do anything like that again and cause that sort of harm in the future. So these two things are not in opposition to each other: it is a complementary requirement for the clause to include a direct reference to measures to try to make it possible for the individual to desist from crime. There is a wide range of measures, but, in the context of this clause, the right reverend Prelate mentioned drugs and drug treatment. Of course, alcohol is also a very significant factor in many of the sorts of crimes that we are talking about.
This brings back memories of an incident that occurred during my time in the House of Commons, when some teenagers pulled down and stole the union flag from outside my office. They then made the mistake of exhibiting it around the pubs of the town, which led to the police catching them pretty quickly. The sergeant rang me up and said, “I do not really want to issue a formal caution because one of them wants to go into the Army, and that may prevent him doing so. I suggest that they club together, pay for its replacement and all write to you to apologise”. That was the kind of practical policing that, nowadays, is so surrounded by rules and requirements that it is often more difficult to do. But it was the right solution. I had some delightful letters, most of them insisting that their families had always voted for me. But it made a sufficient impact on the individuals—it was just a minor thing—making them less likely to commit crimes  in the future. That is the emphasis that we need to add into this clause—an emphasis on trying to ensure that that individual commits no further crimes in the future.

Lord Framlingham: My Lords, I am not as well versed in these matters as many noble Lords are, but, in the interest of clarity, could the Minister explain what a “diversionary caution” is?

Lord Paddick: My Lords, we support this amendment, but, as I have already said, we have our doubts about the whole regime. For the benefit of noble Lords who missed the midnight debate on Monday, I bring you the edited highlights, which are relevant to this group.
I quoted from the House of Commons briefing paper 9165. On the Government’s proposals on diversionary and community cautions, it says:
“the available evidence suggests the system: … may result in a further decline in … OOCDs; … is likely to cost more … is unlikely to have a major impact on the reoffending rates of offenders; and … may improve victim satisfaction but is unlikely to have a major impact.”
I have to say that the high point for me on Monday night—or was it Tuesday morning?—was the Minister’s answer to my question about how effective conditional cautions, which are the existing system of cautions with conditions attached, were, compared with simple cautions that do not have conditions attached. The noble Lord announced with glee, if I may say that in a very respectful way, that:
“As the Committee will know from previous exchanges, I am quite a fan of data.”—[Official Report, 8/11/10; col. 1577.]
The Minister then looked at his phone and a message from his WhatsApp group—it is good to see members of the WhatsApp group in the Box today—saying that, in effect, there was no data. The Government not only keep no record of how many conditional versus simple cautions are administered, just the total number of all cautions, but have no record of what kind of conditions are attached to conditional cautions. On the basis of that data void, they plan to implement a system where all police cautions will need to have conditions attached.
I also quoted from a 2018 paper by Dr Peter Neyroud, former chief constable of Thames Valley Police and now a distinguished academic, published by the University of Cambridge and commissioned by the National Police Chiefs’ Council, entitled Out of Court Disposals Managed by the Police: A Review of the Evidence. On the police attaching conditions to cautions, he said:
“The result … was a significant degree of inconsistency and a substantial number of inappropriate and un-evidenced conditions.”
The right reverend Prelate the Bishop of Durham gave us an example of, presumably, a youth who was banned from public transport, which meant he could not get to school. I continue to quote from Dr Peter Neyroud:
“Whilst the provision of further training and more guidance improved the situation somewhat, the cost of such an investment within a more general implementation of OOCD’s with conditions”—
exactly what the Government are proposing—
“would be prohibitive and, in any case, did not completely resolve the problems.”
Never mind—the noble and learned Lord, Lord Thomas of Cwmgiedd, came up with a better idea: the inspectorates of the constabulary and of the CPS could ensure consistency, so that somebody in a similar situation, committing a similar offence, would have the same conditions attached, no matter where they were in the country. I am afraid not, said the Minister:
“Those two inspectorates are not regulators; they do not have power to enforce compliance.”—[Official Report, 8/11/21; col. 1576.]
Inconsistent, inappropriate and unevidenced conditions will be attached to cautions all over the country, bringing no benefit to offenders, little benefit to victims and increased costs to the criminal justice system. That is what this part of the Bill does.
We support this amendment, which should also apply to diversionary cautions, but the omens are not good that the police will know what they are doing when it comes to applying conditions to support the offender to desist from offending. There is serious doubt that, even when they do, the conditions will have any effect on reducing reoffending.

Lord Ponsonby of Shulbrede: My Lords, this has been a wide-ranging debate. When the right reverend Prelate introduced it, he made a general plea in favour of cautions and on why his amendment was appropriate. He spoke of the benefits of cautions and what they need to be effective, and of the revolving door of crisis and crime and of a holistic approach. He particularly gave the example of women offenders, for whom a holistic approach is appropriate to reduce reoffending. Then he went on to give examples of why quite a lot of cautions fail—by giving too many conditions. My experience, through following both cautions and sentences through court, is that the more conditions you put in place, even if they are in place for the best of reasons, the more likely you are to have a breach and to re-enter that cycle, coming back to court or to the police when conditions are breached.
My central point is that out-of-court disposals are a difficult area. The Government and previous Governments have a lot of experience in trying to come up with an appropriate regime for out-of-court disposals. As we have heard on the Bill—I agree with pretty much all the points made by the noble Lord, Lord Paddick—we have another cautions regime, which we hope will work in some way. I particularly noted the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, about the need to see draft regulations or a draft code of practice to ensure consistency across the country.
I close by drawing an analogy between the youth regime and the adult regime we are talking about here. We have seen far more extensive introductions of cautions in the youth regime over the last few years, which has seen far fewer youths being brought to court. That is possibly a good thing, but the consequence is that the youths who come to court are often charged with far more serious offences. That may be right in some sense, but we see repeated interventions for youths with conditional cautions, simple cautions or other out-of-court disposals, a multitude of times, until eventually the youths end up in youth court.
I support the overall objective of having an effective caution regime, but I share the scepticism of the noble Lord, Lord Paddick, about the reasons for putting this regime in place. One should not be misled into thinking that any particular regime would immediately have better results than previous regimes or the current regime.

Lord Wolfson of Tredegar: My Lords, I hope it is in order to pick up one point that was put to me at the end of the last group and say a word on it. I hope the Committee will forgive me. It goes to all groups, in some ways, because it is about how legislation is put online. Legislation.gov.uk has a facility to look at the original texts and unscramble the later amendments, so to speak. A point that occurred as the noble Baroness, Lady Hamwee, was speaking was whether one could put in hyperlinks to take you through different pieces of legislation. I am happy to look into that, but I now turn to this amendment.
My noble friend Lord Framlingham asked what a diversionary caution is. To try to sum up a large part of the Bill in about three sentences, I say that there is going to be a lower-tier disposal called a community caution and an upper-tier disposal called a diversionary caution. Conditions must be attached to both, aimed at one of three objectives—rehabilitation, reparation or punishment. Restrictive conditions can be set, where they contribute to reparation or rehabilitation. In that regard, there is a similarity to the existing conditional caution regime. I hope that answers the question.
I now turn to the substance of the amendment in the name of the right reverend Prelate the Bishop of Gloucester—moved by the right reverend Prelate the Bishop of Durham—alongside the noble and learned Lord, Lord Thomas of Cwmgiedd, and the noble Lord, Lord Beith. It goes to the primary objective of the new two-tier statutory framework, which I have just explained, to provide, as a requirement of the community caution, meaningful court conditions to help an offender stop offending.
I am grateful for the broad support, as a matter of principle, of the right reverend Prelate for the aims of the Bill on out-of-court disposals. I respectfully agree with the point made by the noble and learned Lord on the importance of the caution regime in the criminal justice system. I also agree with the point made by the noble Lord, Lord Ponsonby, that cautions must be carefully considered to avoid the syndrome of repeated interventions.
While the amendment is obviously well intentioned, the Bill already makes provision for the purpose that underpins it in Clause 80 on diversionary cautions and Clause 89 on community cautions. The Bill asks the relevant person to focus on the position of the offender. Of course we all agree that one has to look at the position of the victim, but I agree with the noble Lord, Lord Beith, that one must also look at the offender. The Bill already does that.
While I agree with the broad thrust of the purpose of the amendment, I suggest that it is unnecessary. That is because, aside from the punitive option of a financial penalty, the conditions of both the diversionary and the community caution must be aimed at rehabilitation or reparation, thereby addressing the underlying causes of the offending. Importantly, the  cautions enable referrals to support services where relevant as conditions of the disposal. Referrals at this pretty early stage of the criminal justice system could include referrals to relevant intervention services such as substance misuse services, mental health treatment providers or gambling addiction, or restorative justice referrals. All those help to address the underlying causes of offending behaviour and so help to reduce reoffending or the escalation of offending behaviour.
As I have said, a code of practice will accompany the legislation. It will be drawn up in collaboration with stakeholders and subject to a formal public consultation and to an affirmative statutory instrument. I respectfully agree with the noble and learned Lord, Lord Thomas, as he would no doubt expect me to, as to the fundamental importance of the rule of law in this and, indeed, other areas. I wonder whether actually the police are best viewed as being seen as part of the Executive; we could probably have an interesting debate on that. The answer might be that it depends on the purpose for which you are using the principle of the rule of law as to what exactly it would encompass.
To give the noble and learned Lord a bit more information, the way that the code of practice will be put together is that there will be an informal stakeholder engagement exercise with police forces, the National Police Chiefs Council, police and crime commissioners, the CPS and relevant third-sector organisations, which will help with drafting. We will then have a formal public consultation, which will take place next year. Importantly, the power to issue the code and the regulations is contained in the clauses of the Bill, so we will not have the power to do that until the Bill receives Royal Assent and is commenced.
I want to pick up the underlying points made by the noble Lord, Lord Paddick. I hope he will not take it amiss if I do not respond to those. There is a clear conceptual gulf between us, if I may put it that way, as to the purpose of the regime and whether it is soundly based. I set out the Government’s position on that earlier. I am not sure it is helpful if I just repeat those words each time because there is that gulf between us and I am not sure it is going to be bridged. I hope the noble Lord will therefore not take it amiss if I do not respond in detail.

Lord Paddick: It is not a conceptual gulf. It is a question of where the evidence is that cautions with conditions attached are more beneficial than cautions without conditions attached. I can answer that question for the Minister: there is no evidence, because the Government do not collect any. That is coupled with the fact that this House will be asked—this Committee is debating it now—to sign a blank cheque for all this when the detail has not been worked out. There will be public consultation and consultation with stakeholders, but we have no idea what this is going to look like in the end. That is no way for this House to proceed with this legislation.

Lord Wolfson of Tredegar: Well, we did have that exchange. I went through the way that it has been piloted in various police forces, and we had an interesting exchange. I am happy to look again at the record and see whether there is anything else that I can add, but I  am not sure that will necessarily persuade the noble Lord in any event. Again, I am not sure it is helpful to go through those fundamental points each and every time we come to one of these amendments.
I hope I have responded substantively—and, I hope, substantially—to the amendments tabled by the right reverend Prelate. For the reasons that I have set out, I ask him to withdraw them.

Lord Thomas of Cwmgiedd: Before the noble Lord sits down, and to go back to the fundamental point about the code of practice and the regulations, is there not even a framework or some outline that we can look at so we could work out what is necessary in primary legislation and what is necessary in a code of practice? I must say that it is wholly contrary to the rule of law for a democratically elected body—I include the whole of Parliament in that—to pass legislation that has not been properly gone into.
Here we are dealing with the liberty of the subject. I think that most people do not appreciate the seriousness of a caution. When I was Lord Chief Justice, we had a number of cases where people found out years later the problem with having accepted a caution. In one case, for example, a person who was young and had no convictions of any kind could not go to America. There are other cases where a caution for a minor offence makes you into a “person of bad character”. These are matters that go to the liberty of the subject and they are of fundamental importance.
It is quite contrary to the rule of law to ask us to pass legislation for which there is no urgency. As the noble Lord, Lord Ponsonby said, this is a long-standing problem. Could the Minister not reconsider? I entirely sympathise with the civil servants at the MoJ because they are hard-working. Of course, they have to work hard because of all the Government’s cuts to the Ministry of Justice; they are not responsible for that and nor is the Minister, who I am sure would like as much money as possible. Could we not, in this vital area of the liberty of the subject, do some proper work on it rather than wasting a lot of time debating principles? It would be so much more efficient, on an issue that is not urgent, if we could have a draft, a framework or something to look at.

Lord Wolfson of Tredegar: My Lords, of course I understand the point made by the noble and learned Lord. We could have an interesting debate about whether that is properly encompassed in the phrase “rule of law”, but I take the underlying point that he makes. I have sought to set out where the code of practice would be relevant, where the Act ends and the code of practice begins. I am happy to have a further discussion with him on that point.
I agree that cautions are an important part of the criminal justice system. They can have consequences, as the noble and learned Lord set out, and not being able to go to America is just one of them. That is why in a later part of the Bill, which we will come to, the question of when a caution is spent is so important. We have sought to build that into the Bill, which I hope meets, at least in part, the point that he makes. I am happy to discuss this point with him further.

Bishop of Durham: I thank the Minister for his substantive and indeed substantial reply. The right reverend Prelate the Bishop of Gloucester will certainly read Hansard carefully and decide whether this is a subject that we will come back to. My observation would be that part of the purpose of the clause was to recognise that the offender needs to be involved in considering whether the conditions will help them not to reoffend, and I am not sure that is covered in the rest of the Bill. That would be the reason for coming back.
I note the involvement of the third sector in the production of a code of practice. I agree that I wish that we at least had a draft. I hope that the Centre for Justice Innovation, along with Revolving Doors, would be two of the organisations involved in that process, because the work they do is really good. At this stage, though, I beg leave to withdraw the amendment.
Amendment 181 withdrawn.
Clause 88 agreed.

  
Clause 89: Rehabilitation and reparation conditions
  

Amendment 182 not moved.
Clause 89 agreed.

  
Clause 90: Financial penalty conditions
  

Amendments 183 to 186 not moved.
Clause 90 agreed.
Clauses 91 to 94 agreed.

  
Clause 95: Code of practice
  

Amendment 186A not moved.
Clause 95 agreed.
House resumed. Committee to begin again not before 3 pm.

Racism in Cricket
 - Commons Urgent Question

The following Answer to an Urgent Question was given the House of Commons on Tuesday 9 November.
“I will start by being very clear about something on which I know the whole House will agree: there is no place for racism in sport. Indeed, there is no place for racism anywhere in society. It must be confronted, it must be eradicated and it should never be written off as just ‘banter’.
The Government are extremely concerned by the reports of racism at Yorkshire County Cricket Club. Quite simply, the situation faced by Azeem Rafiq was unacceptable. It should never have been allowed to happen in the first place and it should have been dealt with properly during the initial investigation. We have made it clear to the England and Wales Cricket Board that this requires a full, transparent investigation, both of the incidents involving Azeem Rafiq and of the wider cultural issues at Yorkshire County Cricket Club. The ECB is now investigating the matter fully.  It took action against the Yorkshire club on Friday, stripping it of the right to host international matches, and has suspended a player.
There have been a number of resignations from the Yorkshire board—quite rightly—including that of its chairman. Lord Patel of Bradford has taken over as chairman and has set out the approach that he will be taking to tackle the issue at Yorkshire. Crucially, he has started by apologising to Azeem Rafiq, but we know that that will not undo the pain that Azeem feels. More action is needed and we have called on Lord Patel and the ECB to investigate fully, to eradicate racism where it exists and to tackle the culture that can support it. In addition, the ECB is now undertaking a regulatory process. It must take strong action where it is necessary and that action must be transparent and swift, for the benefit of cricket.
The ECB has also launched the Independent Commission for Equity in Cricket to look at wider issues that go beyond Yorkshire. It is chaired by Cindy Butts, a highly respected anti-racism campaigner. She is a board member of the Kick It Out campaign in football and is also, as you know, Mr Speaker, a lay member of your Committee for the Independent Parliamentary Standards Authority. I have great confidence in her independence and her phenomenal track record in this area. This terrible case—the awful case of the abuse that Azeem Rafiq should never have suffered but did suffer—shows how much more needs to be done to stamp out racism in the game, and I urge anyone who has experienced discrimination in cricket to approach Cindy Butts’s commission and report what they have experienced. I understand that the Equality and Human Rights Commission has requested information about this incident. That is quite right, and I encourage the EHRC in its work.
Sport should be for everyone and it should not take cases such as this to bring that to life. The Government applaud Azeem Rafiq’s courage in speaking out and encourage anyone who has been similarly affected to do the same. This must be a watershed moment for cricket. The Government will closely scrutinise the actions taken by the ECB—the Minister for Sport met the board last week to discuss this topic—and by Yorkshire County Cricket Club in response to these damning allegations. The investigations to which I have referred must be thorough, transparent and public. That is necessary to restore the public’s faith in cricket in Yorkshire and beyond. Parliament is watching, the Government are watching and the country is watching. We expect real action and the Government stand ready to step in and act if those involved do not put their own house in order.”

Lord Bassam of Brighton: My Lords, I welcome the appointment and early actions of the noble Lord, Lord Patel of Bradford. He surely has shown more leadership in a few short days than we have seen from the entire Yorkshire County Cricket Club over many years.
I would also like to place on the record our sympathy and respect for Azeem Rafiq: sympathy, because nobody should suffer the racist abuse in the workplace that he has suffered; respect, because he blew the whistle and  has set in motion a process which we hope will ensure that any form of abuse within cricket at any level can be swiftly identified, properly challenged and appropriately punished. While it is of course for individual sporting bodies to consider and respond to these kinds of incidents, can the Minister confirm whether the Government have plans to review the procedures in place across different sports and, in the light of events at Yorkshire County Cricket Club, governance arrangements, to ensure that they are fit for purpose? Finally, what support are the department considering or planning to offer the noble Lord, Lord Patel, in the difficult task that he has taken on?

Lord Parkinson of Whitley Bay: I am grateful to the noble Lord for his support for the noble Lord, Lord Patel of Bradford, whom I spoke to this morning. Understandably he is rather busy, focusing his attention on the matter at hand, but I reassured him that there is huge support across your Lordships’ House for him and the important job he has in addressing this appalling situation at Yorkshire County Cricket Club.
We are very glad that the noble Lord, Lord Patel, began by apologising to Azeem Rafiq for the appalling behaviour and the unacceptable way in which his case was dealt with. The Government will closely scrutinise the actions that the Yorkshire County Cricket Club and the ECB take in response to these very concerning allegations. We want that investigation to be thorough and transparent but also swift, to ensure that the public’s faith in cricket can be restored—in Yorkshire and beyond. If not, the Government will not hesitate to step in and act.

Baroness Verma: My Lords, I welcome the actions of the noble Lord, Lord Patel, but can my noble friend the Minister look at all sports? It is not just cricket: it is football—it is every sport. If you are a person of colour, the pain that you suffer, as those sitting here of colour will know, stays with you for life. It is important that we start looking at these clubs. They make huge amounts of money. They need to look at their codes of practice and what they are doing, and the leadership must come from the top. It would be useful for us all to know how they will report what they are doing in their clubs across the country to improve the situation and ensure that local communities are better represented within their own movements.

Lord Parkinson of Whitley Bay: My noble friend makes a very important point. Sport, like all areas of society, has a very important role to play in tackling discrimination where we see it. In June of this year, Sport England, UK Sport and the other sports councils published the results of a detailed independent review into tackling racism and racial equality in sport. The findings made it clear that, sadly, racism still exists in sport in the UK and that there are long-standing issues for us all to tackle. Each council is working swiftly to develop its own specific action plan to deliver on these commitments and address the recommendations, but, as she says, working with communities and individuals is a hugely important part of that.

Lord Addington: My Lords, it is quite clear from what has happened that the capacity of those sitting in darkened rooms to talk about themselves to themselves is still very alive in sport, as in other sections of our society. When the Equality and Human Rights Commission gets involved, it shows that something has gone wrong. What are the Government going to do to tell people, even if they will not change—even though it is good to do so—that they must change because society will not tolerate them carrying on like this? Can we have an action plan?

Lord Parkinson of Whitley Bay: The noble Lord makes an important point. Something clearly went catastrophically wrong with the culture at board level at Yorkshire County Cricket Club. It is good that the former chairman and two other members of the board have resigned, and that the noble Lord, Lord Patel of Bradford, has come in to drive the culture change that is needed there. It also makes the important point, as he does, about the need for diversity and representation at senior levels in sport, which we are aware of.

Lord Haselhurst: My Lords, I should first point out that I am a member of Yorkshire County Cricket Club, Essex County Cricket Club, Middlesex County Cricket Club and MCC. With our friend, the noble Lord, Lord Patel, now installed in Yorkshire, a committee of inquiry being undertaken in the other place and an investigation being carried out by the England and Wales Cricket Board, do the Government not have some space to consider whether any specific action on their part is required to confront the appalling incidents that have come to light? At the same time, perhaps to get some sense of perspective, we should remind ourselves that cricket has its finer aspects, which hopefully will be on display again in Abu Dhabi this afternoon.

Lord Parkinson of Whitley Bay: My noble friend is right: the vast majority of people who play and enjoy cricket have the right attitude. He is a well-published author on the subject as well as being a member of all the clubs he mentioned. My honourable friend the Sports Minister met the England and Wales Cricket Board at the department on Friday to seek the assurances we wanted to hear about the approach it is taking. We are following that very closely and will not hesitate to take action ourselves if we think it necessary.

Lord Mann: My Lords, a year and two weeks ago, Imam Qari Asim, who advises the Government on Islamophobia, and myself, who advises on anti-Semitism, wrote to the ECB offering advice and requesting a meeting. In effect, we have had no response whatsoever. Does the Minister think it a good idea for cricket to take some advice, and should not Kick It Out, which has done such good work in football, be properly resourced to do similar work in cricket?

Lord Parkinson of Whitley Bay: I am sure that the ECB has heard the reminder; it should reply to the noble Lord and take him up on the offer of his insights and expertise. He is also right to point to the work of Kick It Out. Cindy Butts, who the ECB has  appointed to chair its Independent Commission for Equity in Cricket, has experience working with Kick It Out in football and will be known to your Lordships as a lay member of the Conduct Committee. We are very glad to see her appointment and the work that she is taking forward.

Viscount Hailsham: My Lords, may I make a more general point? Does my noble friend agree that one should be rather slow to criticise individuals, or to take action that can cause damage to individuals or institutions, unless one is aware of all the relevant facts? Is there not a danger that, out of a spirit of political correctness, people are saying and doing things rather prematurely?

Lord Parkinson of Whitley Bay: I do not entirely agree with my noble friend. He is right to point to the need for evidence. That is why we are very keen to see the full report and are glad that it has been provided to the Select Committee in another place. However, this case, sadly, has been going on for a number of years. It has not been dealt with with the speed and thoroughness it ought to have been, and we are glad that that finally is happening.

Lord Cashman: My Lords, the noble Baroness, Lady Verma, is absolutely right that racism goes much wider than sport. I am afraid I disagree with the noble Lord; we must call it out wherever we see it, because through silence we acquiesce and we condone. Therefore, will the Minister work with other government departments to ensure that there is a coherent approach, not only to the forms of racism we see day in and day out, but to the other forms of discrimination that debase the very society in which we live?

Lord Parkinson of Whitley Bay: Yes, absolutely. I am mindful of the Question yesterday on inclusion in sport. That is at the centre of the Government’s strategy Sporting Future. It is critical when confronting the disease of racism that all of us speak out and call it out. Sunlight is the best disinfectant, which is why we want to see the report in full so that everybody can play their part in tackling this.

Lord Scriven: My Lords, the issue goes much wider than cricket bodies. Clearly, cricket is funded by big money and sponsors also have a role, not in calling out individuals, but in dealing with institutional racism of an organisation. Would the Minister like to give any advice to sponsors such as NIC Group, which has refused, like other sponsors, to take a stance against institutional racism, by sitting on the fence and not doing what those like Anchor butter did instantly in withdrawing their funds and standing up to racism?

Lord Parkinson of Whitley Bay: It has been very powerful to see the response of sponsors in focusing the minds of people at Yorkshire County Cricket Club on the very concerning allegations that have been made and the way they have been dealt with. I am sure the other sponsors will have heard the noble Lord’s call for action, but I also hope they will be reassured by the work the club is now finally taking.

Bosnia and Herzegovina
 - Commons Urgent Question

The following Answer to an Urgent Question was given in the House of Commons on Tuesday 9 November.
“The recent political violence is of significant concern to the UK Government. Milorad Dodik, the Bosnian Serb member of the presidency, has threatened to withdraw Republika Srpska—the entity—from a range of state institutions. That is an act that the high representative calls a de facto secession. This is a dangerous and deliberate attempt to distract from a failure to improve standards of living and to tackle corruption. It is unacceptable.
The UK fully supports the territorial integrity and sovereignty of Bosnia and Herzegovina. After the devastating conflict of the 1990s, the region has lived in peace for 26 years and the Dayton political system, which should have been used to deliver progress and development for citizens, has been exploited by politicians who are focused on building and maintaining their own position.
We recognise the important role that the EUFOR peace and stabilisation force has played and we welcome the renewal of its mandate—an important deterrent against those malign actors who wish to see instability on Europe’s doorstep. We worked hard in the Security Council to ensure that it authorised EUFOR’s mandate for a further 12 months. The UK continues to play an active role. My honourable friend the Europe Minster was in Bosnia and Herzegovina in the summer to support that work.
The high representative will visit the UK for meetings in December. The UK is in close contact with him to ensure that we work in co-operation and is giving him vocal support, including on the use of executive powers should the situation require it. That is a further check and balance on the destabilising actions in Bosnia and Herzegovina. At the upcoming NATO Foreign Ministers meeting, the Foreign Secretary will push for more focus and resource on Bosnia and Herzegovina and on the need to rebuff Russia’s actions.
The international community also has collective responsibility to ensure that there is no return to the conflict of the 1990s. Along with our international partners, we are ensuring that the high representative’s position and work are secured and we will continue to urge Russia to return to productive engagement with the peace implementation council’s steering board. Along with our international partners, we are working to tackle the divisive rhetoric and actions from some politicians in Bosnia and Herzegovina, including the threat to re-establish a Republika Srpska army and to pull out of other established state-level institutions.
The UK is committed to helping the people of Bosnia and Herzegovina build a better future in a stable and prosperous state, with strong institutions. We support the NATO Headquarters Sarajevo, including through the secondment of UK staff officers who play an important role in building the capacity of the armed forces. We are providing capacity building and expertise to those actors who demonstrate genuine commitment to progress.”

Lord Collins of Highbury: My Lords, there is clearly an urgent need to reinforce the political will behind the Dayton accords, and James Cleverly in the other place, in response to the Urgent Question, stressed the vital role of the high representative. As the Minister knows, his effectiveness is undermined by Russia’s continued lack of acceptance of his position. The ongoing threat to re-establish a Republika Srpska army would represent a disastrous turning point in the region. Does the Minister agree that this is a red line which must not be crossed? Can he confirm whether the upcoming NATO Foreign Ministers’ meeting will co-ordinate a response to this possibility?

Lord Ahmad of Wimbledon: My Lords, I assure the noble Lord that we stand firmly behind the high representative and he has the United Kingdom’s full support, including for the use of executive powers should the situation require it. It is my understanding that the high representative will be visiting the United Kingdom in December, which will offer opportunities to engage directly with him on the situation. We were pleased, notwithstanding the challenges Russia posed, that the EUFOR is being renewed in November, which is a positive development—notwithstanding, as I said, Russia’s bid to undermine this role.
On the issue of the red line on Republika Srpska, we have been very clear that what we have seen recently from the actions of Mr Dodik, who is part of the tripartite presidency, is undermining the Dayton accords. He needs to cease from the statements he is making, which are doing nothing to further the great progress we have seen over the last 26 years.

Lord Purvis of Tweed: My Lords, it is worth recalling that one of the high representative’s predecessors, my late noble friend Lord Ashdown, served with great distinction and benefited greatly from the combined work of NATO and the European Union, with the full support of the British Government. He spoke to me before I visited the region and met the President and Prime Minister of Serbia; those from Republika Srpska refused to meet me because I met Bosnians and Croats.
It struck me that technical assistance on good governance is needed in that area to defeat the considerable state capture there has been through organised crime, which the Russian Government are actively supporting in their destabilisation efforts. Will the Government support Serbia’s continuing negotiations for joining the European Union, and will they work with the European Union so that there is a common front for good governance in the area to make sure that there is not a vacuum which Russian destabilisation efforts can fill?

Lord Ahmad of Wimbledon: My Lords, I join in recognising Lord Ashdown; I am sure I speak for all in your Lordships’ House in saying that we miss Lord Ashdown. He was very generous with his time when I engaged with him outside the exchanges—I would not call them combative, but very measured—we have in your Lordships’ House. He had great insight on various  ssues, and particularly Bosnia-Herzegovina. The noble Lord, Lord Purvis, is correct, and we are working with EU partners. It is particularly notable that, on this occasion, the likes of Serbia and Croatia very much stand with ensuring the territorial sovereignty and integrity of Bosnia.

Earl of Dundee: My Lords, regarding countries within the former Yugoslavia, I speak as chairman of the of the All-Party Group for Croatia and as a Council of Europe parliamentarian.
On the priority of maintaining stability in Bosnia-Herzegovina, I welcome the United Kingdom’s current actions and proposals: within the Security Council, already to have helped achieve the authorisation of EUFOR’s mandate for another 12 months; the Foreign Secretary’s intention at the next NATO meeting to press for increased involvement to avoid the splitting up of Bosnia-Herzegovina; and the United Kingdom’s constructive contacts with the high representative, including consideration of the possible use of executive powers.
On collective work with others, does my noble friend agree that adjacent states should now be invited to join NATO interventions, not least Croatia and Slovenia, which are also existing members of the European Union?
In yesterday’s debate in another place, the useful maxim was reiterated:
“When goods cross borders, soldiers do not”.—[Official Report, Commons, 9/11/21; col. 182.]
In the interest of prolonged stability, might the Department for International Trade now lead new initiatives to sustain trade and economic growth both in Bosnia-Herzegovina and the western Balkans?
Using its own authority, as well as operating within the Council of Europe where it remains a prominent member, does my noble friend concur that the United Kingdom, assisted by other states, should launch a variety of initiatives straightaway to protect and benefit Bosnia-Herzegovina and the region in order to prevent war and enable long-term peace?

Lord Ahmad of Wimbledon: My Lords, I agree with all my noble friend’s points. I assure him that the United Kingdom Government are using their position within NATO—the noble Lord, Lord Collins, made that point. We will be discussing this at the next meeting of NATO Foreign Ministers later this month, as well as how we can further support Bosnia-Herzegovina. My honourable friend the Europe Minister was in Bosnia over the summer, and I am in the midst of planning a visit to the region with my preventing sexual violence in conflict responsibilities, and to Bosnia specifically.

Lord Cormack: My Lords, as the first chairman of the All-Party Group for Bosnia in the other place, and one who was much involved in all the debates urging our then Government to take more decisive action, I am deeply distressed to think there is any possibility of further conflict. Will my noble friend use every endeavour he has, perhaps liaising with my noble friend Lady Helic, who knows more about this  than the rest of us put together, to do what they can collectively to impress that we must never have another Srebrenica? That was a stain on Europe. I have not discussed it with her, but I think my noble friend Lady Helic would be well placed to give my noble friend every help and advice that he needs.

Lord Ahmad of Wimbledon: My Lords, I assure my noble friend that I know our noble friend Lady Helic well, and she does not need support or encouragement in giving advice to me as Minister of State. Indeed, I am regularly welcoming her insights on a variety of issues, particularly in her work on PSVIC. My noble friend is correct that she has deep insight on the conflict.
On a personal note, in a previous career just after securing my job in the City, I engaged through Save the Children in a direct visit to the region when the conflict broke out. I have also visited Srebrenica on a number of occasions. The annihilation of a complete community, young boys and men in particular, who were taken out for simply being of a particular nationality and faith, should never ever happen again anywhere—let alone in Europe. Perhaps it is a sombre reflection for us in your Lordships’ House; I said to my Private Secretary as we walked across that we often talk of conflicts that are remote, but today we are talking of emerging conflicts on our continent once again.

Covid-19 Update
 - Statement

The following Statement was made in the House of Commons on Tuesday 9 November.
“With your permission, Mr Deputy Speaker, I would like to make a Statement on the further steps we are taking to keep this country safe from Covid-19.
We head into the winter months in a much stronger position than last year. Of all the reasons for this progress, the greatest is unquestionably our vaccination programme. Across the UK, the overwhelming majority of us have made the positive choice to accept the offer of vaccines against Covid-19. Almost eight in every 10 people over the age of 12 have chosen to be double-jabbed and more than 10 million people have now received their boosters or third jabs. I am grateful to colleagues from all parties for their steadfast support for our national vaccination programme.
Despite the fantastic rates of uptake, we must all keep doing our bit to encourage eligible people to top up their defences and protect themselves this winter. I understand that vaccination can, of course, be an emotive issue. Most of us have taken this step to protect ourselves, our families and our country. Sadly, we have all seen how Covid can devastate lives, but we have also seen how jabs can save lives and keep people out of hospital.
Our collective efforts have built a vast wall of defence for the British people, helping us to move towards the more normal way of life that we have all been longing for. The efforts of the British public have been phenomenal and those working in health and social care have been the very best of us. Not only have they saved lives and  kept people safe through their incredible work, but they have done the same by choosing to get vaccinated. I thank NHS trusts and primary care networks for all the support and encouragement they have given to their staff to take up the vaccine. The latest figures show that 90% of NHS staff have received at least two doses of the Covid-19 vaccine, although in some trusts the figure is closer to 80%.
Although our health and social care colleagues are a cross-section of the nation at large, there is no denying that they carry a unique responsibility. They have that responsibility because they are in close contact with some of the most vulnerable people in our society—people we know are more likely to suffer serious health consequences if they get Covid-19. Whether it is in our care homes, our hospitals or any other health or care setting, the first duty of everyone working in health and social care is to avoid preventable harm to the people they care for. Not only that, but they have a responsibility to do all they can to keep each other safe.
Those twin responsibilities—to patients and to each other—underline, once again, why a job in health or care is a job like no other, so it cannot be business as usual when it comes to vaccination. That is why, from the very beginning of our national vaccination programme, we put health and care colleagues at the front of the line for Covid jabs and it is why we have run two consultations to explore some of the other things that we might need to do.
The first consultation looked at whether we should require people who work in care homes to be vaccinated —what is called the condition for deployment. After careful consideration, we made vaccination against Covid-19 a condition for deployment in care homes from 11 November. Since we announced that in Parliament, the number of people working in care homes who have not had at least one dose has fallen from 88,000 to just 32,000 at the start of last month.
Our second consultation looked at whether we should extend the vaccination requirement to health and other social care settings, including NHS hospitals and independent healthcare providers. Our six-week consultation received more than 34,000 responses and, of course, covered a broad range of views. Support for making vaccination a condition for deployment was tempered with concern that, if we went ahead with that condition, some people might choose to leave their posts. I have carefully considered the responses and evidence and have concluded that the scales clearly tip to one side. The weight of the data shows that our vaccinations have kept people safe and saved lives and that that is especially true for vulnerable people in health and care settings.
I am mindful of not only our need to protect human life but our imperative to protect the NHS and those services on which we all rely. Having considered the consultation responses and the advice of my officials and of NHS leaders, including the chief executive of the NHS, I have concluded that all those who work in the NHS and social care will have to be vaccinated. We must avoid preventable harm and protect patients in the NHS, colleagues in the NHS and, of course, the NHS itself. Only those colleagues who can show that they are fully vaccinated against Covid-19 will be  employed or engaged in the relevant settings. There will be two key exemptions: one for those who do not have face-to-face contact with patients and a second for those who are medically exempt. The requirements will apply across the health and wider social care settings that are regulated by the Care Quality Commission.
We are not the only country to take such steps: there are similar policies for specific workers in other countries, including the United States, France and Italy. We also consulted on flu vaccines but, having considered views that we should focus on Covid-19, we will not introduce any requirement to have flu jabs at this stage, although we will keep the matter under review.
Of course, these decisions are not mine alone: as with other nationally significant Covid legislation, Parliament will have its say and we intend to publish an impact assessment before any vote. We plan to implement the policy through the powers in the Health and Social Care Act 2008, which requires registered persons to ensure the provision of safe care and treatment. I will shortly introduce to the House a draft statutory instrument to amend the regulations, just as we did in respect of care homes.
This decision does not mean that I do not recognise concerns about workforce pressures this winter and, indeed, beyond as a result of some people perhaps choosing to leave their job because of the decision we have taken. Of course I recognise that. It is with that in mind that we have chosen not to bring the condition into force until 12 weeks after parliamentary approval, thereby allowing time for remaining colleagues to make the positive choice to protect themselves and those around them, and time for workforce planning. Subject to parliamentary approval, we intend to start the enforcement of the condition on 1 April.
We will continue to work closely across the NHS to manage workforce pressures. More than that, we will continue to support and encourage those who are yet to get the vaccines to do so. At every point in our programme we have made jabs easily accessible and worked with all communities to build trust and boost uptake. That vital work will continue, including through engagement with the communities where uptake is the lowest; through one-to-one conversations with all unvaccinated staff in the NHS; and through the use of our national vaccination programme capacity, with walk-in centres and pop-up centres, to make it as easy as possible to get the jab.
Let me be clear: no one working in the NHS or in care who is currently unvaccinated should be scapegoated, singled out or shamed. That would be totally unacceptable. This is about supporting them to make a positive choice to protect vulnerable people, protect their colleagues and, of course, protect themselves. The chief executive of the NHS will write to all NHS trusts today to underline just how vital the vaccination efforts are.
I am sure the whole House will want to join me in paying tribute to the heroic responses across health and care. Those who work in health and care have been the very best of us in the most difficult of days. Care, compassion and conscience continue to be their watchwords and I know they will want to do the right thing. Today’s decision is about doing right by them  and by everyone who uses the NHS, so that we protect patients in the NHS, protect colleagues in the NHS and protect the NHS itself. I commend this Statement to the House.”

Baroness Thornton: My Lords, I thank the Minister for the Statement, which largely concerns the matter which we discussed on Monday—making vaccination mandatory for patient-facing NHS staff. I need here to declare an interest as a non-executive director of a local trust.
We know that vaccination saves lives and that it is the best protection against this deadly disease. It helps to cut transmission. We, of course, want to see NHS staff vaccinated. But have the Government considered and taken account of the fact that the NHS is already under the most intense pressure this winter? Waiting lists are close to 6 million, there are already more than 90,000 vacancies across the NHS, and in his Budget the Chancellor failed to allocate funding for training budgets to train the medics we need for the future.
There will be anxiety at local trust level. However laudable the principle, it could exacerbate some of these chronic understaffing problems. We simply cannot afford to lose thousands of NHS staff overnight. Indeed, I spent this morning, as a non-executive of my local trust, discussing risk and its mitigation. Without doubt, the highest risk facing the whole of the NHS is staff shortage.
It was clear that the mandatory vaccine for care home workers covered all staff. These are predominantly in the private sector. Does this new mandate for vaccination apply also to all patient-facing staff, whether they work in the NHS or for private providers?
It is important that the Government have listened to representations from organisations such as NHS Providers, the NHS Confederation and others about delaying the implementation of this until after the winter. We welcome that. I urge the Secretary of State and the Minister to resist the blandishments of the former Secretary of State to bring forward any deadlines. However, have the Government consulted the British Medical Association, relevant trade unions and the royal colleges, which have raised concerns about the practicalities of implementing this policy? It seems to me that there needs to be a push right across the piece.
Will the Minister outline to the House what success looks like for this policy? Some of the 10% of NHS staff who are not vaccinated include those with medical exemptions, those who are on long-term sick and those who could not get the vaccine first time round because they were ill with Covid. Can the Minister tell the House the actual number of NHS staff who should be vaccinated but have not had the vaccine? In other words, when does he consider there to be success? Does full vaccination across the NHS look like 94%, 95% or 96%? What are we aiming for here? What is the target?
The aim of this policy is presumably to limit those with Covid coming into contact with patients, but one can still catch and transmit Covid post vaccine, so will the testing regime that is already in place for NHS staff—I think it is about twice a week at the moment—  increase in frequency? Furthermore, will the thousands of visitors who go on to the NHS estate every week be asked whether they have had a vaccine or have proof of a negative test?
What analysis have the Government done of those who are vaccine hesitant in the NHS workforce? What targeted support has been put in place to persuade take-up among those groups? We know that in trusts where take-up is around 80%, specific support has been put in place—I know it has been in my own trust. But we know from society more generally that there has been hesitancy, for example, among women who are pregnant and those who want to have a baby. That means, sadly, that a significant proportion of those in hospital with Covid are unvaccinated pregnant women and, indeed, some of them have died. So, for example, will there be a dedicated phone line to give clear advice to women and their partners who might have concerns?
Today on the BBC “Today” programme, the Secretary of State spoke about the impact assessment for the mandatory vaccination of care home staff. We have been asking the Minister for this information to be brought to the House. We have done that many times. When will the impact information be available to Parliament?
Finally, on vaccination more generally, Leicester has a vaccination rate of 61%, Bradford—where I come from —63%, Bolton 69%, and Bury 71%. Generally, on children’s vaccinations, we seem to be stuck at 28%. On boosters, there are still around 6 million people eligible for a booster who have not yet had one. The Government’s own analysis shows that people over 70 who are dying from Covid or hospitalised should have had a booster, but many have had only two jabs.
With Christmas coming, which will mean more mixing indoors at a time when infection rates are high—with one in 50 having Covid—we are facing six crucial weeks. What more support will the Government offer now to local communities, such as those I have named, to drive up vaccination rates? Nobody wants to see either local or national lockdowns again.

Baroness Brinton: My Lords, I declare my interest as a vice-president of the Local Government Association. I also thank the Minister for repeating this Statement. Covid-19 Statements are now taking on the role of London buses—large gaps for a while and then suddenly two in one week on vaccines. It feels as though arguments were going on behind the scenes for such a quick second vaccine Statement to be repeated in less than two or three working days.
Like the noble Baroness, Lady Thornton, my honourable friend Daisy Cooper MP asked yesterday about the publication of the long-awaited impact statement —Making Vaccination a Condition of Deployment in Health and the Wider Social Care Sector—that this Statement refers to. It would have been helpful for MPs to have had sight of it at the same time as the Statement. As the noble Baroness, Lady Thornton, said, frankly we needed to see it a long time ago, given that the social care deadline starts tomorrow. It was finally published overnight, and I have some questions on it for the Minister.
The Statement announces that all NHS and social care staff will have to have to be fully vaccinated by 1 April 2022. The deadline for care home staff remains  tomorrow. The predicted numbers on page 4 of the impact statement are pretty staggering—up to 126,000 staff, of whom 73,000 are expected to be NHS staff. Page 6 of the impact statement also says that the modelling cost of replacing unvaccinated workers is between £162 million and £379 million. That is also staggering, given the financial pressures and backlog of cases across a health and social care sector that at the moment is still struggling with the pandemic.
From these Benches we really want to see staff vaccinated but would prefer that it is voluntary and remain concerned about the consequences of tomorrow’s care homes deadline. Page 6 of the impact statement published overnight talks about the disruption to health and care services. But for social care that disruption has already started. Many care home staff have already left or this week are being fired, with a good number moving to the NHS and to retail and hospitality roles.
Large homes are reporting closing down wings of beds due to lack of staff and some smaller homes are handing back state-funded patients to local authorities. Both the Statement and the impact statement are silent on how patients will be looked after before we even get to the consequences of social care homes without beds.
So can I ask the Minister what emergency plans there are to help areas? By the way, answers that say “It’s down to local authorities” are not helpful. This is a crisis created, at least in part, by mandatory vaccines, and there are no staff or beds that can just magically appear. Or is what Sajid Javid said at the Conservative Party conference the reality: namely, that families will be expected to step up to the plate to look after their loved ones in the absence of care home beds? If so, it would be good to see Ministers’ planning for that and the consequent problems for the workforce.
The Statement says that other parts of the social care system—for example, domiciliary care—that were excluded from the original care decision will now be included, but neither the Statement nor the impact statement is clear about the deadline for those in the social care system now being drawn into mandatory vaccination. Can the Minister say what the deadline is for these new groupings? It surely cannot be that the deadline for domiciliary workers is this week. Is this just for full-time staff employed by the care sector, or will others offering regular services such as activities in care homes or subcontractors working in hospitals now be included? There are staff working as sub- contractors for the NHS who have front-line access to patients; for example, delivering meals. Are they included or excluded?
The table on page 4 of the impact statement lists the total number of staff in each sector exempt from vaccination. I cannot find anywhere the criteria for exemption. Can the Minister please tell the House what those criteria are?
I have now asked the Minister at least twice in the past fortnight about the online vaccination form which sits behind the GP records and the app. How many of those who were vaccinated overseas and those who took part in clinical trials are now on the records system? Has it increased from the 53 people that he talked about last week, and are the arrangements for logging third doses for the severely clinically extremely  vulnerable, as distinct from the booster doses for everyone over 50 and health staff, now sorted out? I am still getting reports that they are not.
Finally, there has been considerable concern that the Prime Minister was not wearing a face mask at Hexham hospital yesterday, against all NHS advice. This morning, Dr David Nabarro, the World Health Organization’s special envoy for Covid-19, said on Sky News:
“I’m not sitting on the fence on this one … Where you’ve got large amounts of virus being transmitted, everybody should do everything to avoid … getting the virus or inadvertently passing it on. We know that wearing a face mask reduces the risk. We know that maintaining physical distance reduces the risk. We know that hygiene by regular hand washing and coughing into your elbow reduces the risk. We should do it all, and we should not rely on any one intervention like vaccination on its own. So … please, would every leader be wearing face masks, particularly when in indoor settings? … This virus is unforgiving, and we need to do everything possible to prevent it getting in between us and infecting us.”
Can the Minister explain why the Prime Minister was not wearing a face mask, in breach of Hexham hospital’s rules, and will he pass on those words from Dr Nabarro to No. 10 Downing Street?

Lord Kamall: I thank both noble Baronesses for their questions and the important points they made. It is important that we are clear about many of the issues that they have brought up.
Let us be clear that the best mitigation against this is to encourage those who are vaccine hesitant to take up the offer of vaccination. In both health and social care, we have worked extensively with key stakeholders and arm’s-length bodies to encourage vaccine take-up. This has involved a number of different measures: bespoke communications materials, paid advertising, stakeholder toolkits, positive messaging using influencers and leaders, content in different languages, briefings with different faith groups, webinars with clinical experts, vaccine champions and practical support including vaccination at places of work, flexible access to vaccine hubs, digital booking support and monitoring and support from NHS England. We will continue to encourage uptake in the run-up to the requirements coming into force.
The NHS has also focused in recent months on a targeted approach to improve uptake in hesitant groups by undertaking specific, targeted campaigns directed towards, for example, midwifery staff, ethnic minority groups in certain areas that have been hesitant and students, as well as using the booster campaign as an opportunity to re-engage staff. I thank noble Lords across the House for the advice that they have given me on how we can address hesitancy in some communities and for their very useful suggestions. I have discussed this with a number of other people, and we are looking at potential pilot projects, one working, for example, with faith communities in inner-city areas and mapping the data from Public Health England and the relevant offices.
It is interesting to see how many absences are due now to the unvaccinated. The seven-day average to 6 October 2021 shows an average of 74,863—nearly  75,000—absences in NHS trusts per day, of which more than 15,500 were for Covid-19-related reasons, including the need to isolate. This benefit would be reduced if we relied only on testing, although that remains part of our armoury.
I was asked a number of questions about scope and who this extends to. It applies to all providers, both public and private, of a CQC-regulated activity. This obviously covers a wide range of services, including hospitals, GP and dental practices, and social care providers. Further support on implementation for the sector will be provided through continuous guidance. The policy does not apply to those services and activities which are not regulated by the CQC. Children’s and social care services which are CQC regulated will be in scope of the requirement, but it will not apply to services that are provided as part of shared-living arrangements. Many of these reasons are of course as a result of the extensive consultation that has been undertaken.
I was asked for the number of uptakes. The vaccination uptake figures for NHS staff show that nearly 93% have had at least one dose. Uptakes still vary, from 84% to 97% for the first dose, among NHS trusts. Among primary care workers, this ranges from 94% in the south-west to 76% in the east of England—so we would welcome the advice of any noble Lords who have experience of the east of England. In adult social care, nearly 84% of domiciliary care staff have received one dose of the vaccine, and nearly 75% have had a full course of a Covid-19 vaccine, as of 14 October, which we believe represents the best proxy for the workforce in scope of the policy in other settings, too. So, despite our best efforts, there is still much more that we can do. I personally feel very uncomfortable about compulsion, but I also understand the arguments on both sides when I meet many patient groups and others who tell me that, if they were in hospital or a care home or had relatives there, they would feel much better if the staff were vaccinated and were protected.
What more can we do? The Covid-19 vaccines have been approved by the MHRA as safe and effective, and we continue to send that message out. Analysis suggests that the Covid-19 vaccination programme prevented more than 100,000 deaths in England as of 20 August. We continue to have targeted engagement. The NHS plan also includes one-to-one conversations for all unvaccinated NHS staff with their line manager, with clear guidance on how to do this. We have found that such one-to-one conversations are working in some cases. We want to make sure that we listen as well, hearing concerns that are seen to be legitimate as well as concerns that are not medical reasons but other reasons that staff may have for being so hesitant. It is really important that we understand, and that was all part of the extensive consultation.
We are trying to increase the number and diversity of opportunities. We are using the booster campaign, walk-ins and pop-ups for not only the public but staff as well.
A question was asked about pregnant women. Short-term exemptions from requirements are available to those with short-term medical conditions, but also  including pregnancy. For pregnant women, the exemption expires 16 weeks after childbirth. This will allow them to become fully vaccinated after the birth. We will set out these arrangements, as has been called for by noble Lords, in the guidance on exemptions.
As noble Lords acknowledged, we set out yesterday an assessment of the impacts alongside the laying of the regulations. We also published a full impact assessment yesterday for the original care home regulations, and I thank the noble Baroness for acknowledging that. As committed to by my right honourable friend the Secretary of State in the other House yesterday, we will publish a full impact assessment for the regulations as soon as possible, and before Members vote on the proposed legislation. I recognise that Peers will be keen to understand the impacts of the policy as soon as possible and as part of consideration of the regulations. However, I hope that noble Lords will appreciate the necessity of trying to move as quickly as possible to ensure that patients are protected and that workers are given as much notice as possible. We will set out the statement of impact, which noble Lords will be able to consider, and it will be published before Members cast a vote.
We have done a number of things on vaccine hesitancy, and I have laid them out already. We want to encourage as many people as possible to take up the vaccine ahead of the regulations, which is one reason why we have the grace period until 1 April next year. The individual worker maintains a choice as to whether they decide to have the vaccine. Even if they choose not to have the vaccine, the registered person may redeploy them to a non-patient-facing role. When that is not possible, the worker cannot be employed or otherwise engaged by the registered person. This is incredibly important when it comes to patient-facing staff, especially for the families of those patients who are deeply concerned that their loved ones may be infected by unvaccinated staff.
I was asked how the measure will be enforced. On the approach to vaccination requirements, it is the CQC’s role to monitor and take enforcement action. At the time of registration and when inspected, health and care providers would need to demonstrate that they have effective systems in place. There are a number of measures in place to support care home workers. The majority of care home staff are now fully vaccinated, but there are a number of different programmes. Given the time, I shall not go into them but, if noble Baronesses would like more details on those encouragement programmes, I should be happy to write.

Lord Campbell-Savours: My Lords, if, after Friday, without the knowledge of management as to vaccination, an unvaccinated person working in a care home knowingly or unknowingly transmits the virus to a care home resident, does not the act of transmission constitute a criminal act under a legal definition of assault? Would not an action, whether civil or criminal, be against the care home worker personally and not the care home itself, which would be an innocent party? This is an important issue and, if the Minister feels unable to answer me today, perhaps he could write to me.

Lord Kamall: I thank the noble Lord for giving me notice of his question just before we came in. I tried to get an answer as quickly as possible, and I apologise that that answer has not arrived. I want to make sure it is absolutely right and that I am certain that I do not mislead the House unintentionally.

Baroness Walmsley: My Lords, as we move towards 1 April, I want to raise the issue not just of the concerns of staff, which the Minister has rightly mentioned, but the concerns of patients. Could patients in a ward, an NHS clinic, primary care or any other health setting be informed as to which members of staff have not been vaccinated? Would they then have the right to politely request that they are treated only by vaccinated staff?

Lord Kamall: The noble Baroness makes a very interesting point and an interesting suggestion. I am not quite sure of the details absolutely on those issues—as I said, further guidance will be published. But I promise to write to her, as she so gallantly intimates or hints.

Lord Framlingham: Does the Minister appreciate that quite a lot of people find the idea of compulsory vaccination absolutely intolerable, for all sorts of reasons, however beneficial it may be? This is a serious move for the whole country. Yesterday, in the House of Commons, I believe that the last Secretary of State said that he would not mind the same conditions being applied to flu. Just where does this end?

Lord Kamall: I thank my noble friend for the question. As noble Lords will know, I see myself as a bit of a civil libertarian. Personally, I have asked a number of questions internally about the whole issue of compulsion. It is a very difficult issue, but I understand the arguments on the other side—that we want patients to feel safe and feel that they are looked after by staff who have been vaccinated. Stakeholder analysis and round-tables came out in favour of compulsion on the Covid vaccine and boosters. When it came to flu, interestingly enough, there was a significant disagreement on the practical timing of the flu vaccine supply and the vast majority of doses being available. We have promised to keep it under review, but that is not mandated at this stage.

Baroness Watkins of Tavistock: My Lords, I declare my interest as a mental health nurse, as outlined in the register. I am concerned about the unintended consequences of making vaccines mandatory for healthcare staff, despite the fact that I fully support the vaccine and have had three doses myself. It is a relatively small number of healthcare staff who are not vaccinated—I accept that it varies across the country—but is it right to give no authority at all to boards in trusts to decide the best way forward for the minority of staff who do not wish to be vaccinated? I am concerned that there will be unintended consequences associated with a lack of care staff, particularly nurses, in mental healthcare environments, which may result in poorer care for patients than if we carefully supported that small number of staff in working perhaps with patients who do not want to be vaccinated themselves.

Lord Kamall: I start by thanking the noble Baroness, not only for her question but for the conversations that we have had to help my understanding of the subject and the consequences of some of these actions. I welcome the expertise from across the House when it comes to a number of health-related issues.
The consultation quite clearly said that many felt that vaccines remain our best defence against Covid-19 and that the vaccination programme has prevented thousands of hospitalisations and deaths in the UK. The more staff who are vaccinated against Covid-19, the more likely it will be that vulnerable people in their care, and other colleagues, are protected. Several studies have provided evidence that vaccines are effective at preventing infection and transmission—and beyond preventing infection have an additional benefit of reduced transmission by those individuals who become infected despite vaccination because of a reduced duration or level of viral shedding.
On the specific question, I am sure that the noble Baroness recognises—as I know from when we discussed these issues—how complex this issue is. There are ethical and health issues, and the concerns of patients and their families, who feel much more comfortable about being treated by staff who are vaccinated.

Baroness McIntosh of Hudnall: My Lords, I think that there are probably very few people, apart from hardened anti-vaxxers, who do not accept that vaccination is good and that it has done a huge amount to reduce the impact of the pandemic, which has had such devastating effects. However, following on from the question from the noble Baroness, Lady Watkins, it would appear likely that there will be not unintended but predictable and intended consequences as a result of this policy, which is that some NHS staff, and, more immediately, some social care staff, will simply give up doing what they do. In those circumstances, what advice is the Minister or his Government offering, particularly to private sector care homes, as to what they should do if faced with staff losses other than simply to reduce their capacity to take in new patients?
I noticed that the Minister did not pick up the question from the noble Baroness, Lady Brinton, about the example that people in public life—I name nobody in particular—can set by wearing their masks, appropriately, on all occasions when it is sensible to do so. What encouragement can he offer to the rest of us about further examples being set on that front?

Lord Kamall: There clearly are concerns. These were expressed in the stakeholder engagement that occurred with both the social care sector and other sectors that will need to bring this in from March next year—we are bringing it in now but with a grace period until next March. A lot of this engagement and consultation discussed how we can support staff who are unwilling to be vaccinated as well as understanding their concerns and whether employers see these as legitimate.
Thinking back to the beginning of the crisis, one of the reasons this was called for in care homes as quickly as possible was the data from the early part of the pandemic, when there were a disproportionate number  of deaths in care homes. A number of people, including patient groups and families of patients, were quite adamant that if their relatives were in a care home, they wanted to make sure that they were being looked after by staff who had been vaccinated.
There is another vaccine that is a condition of deployment, that for hepatitis B. I have asked medical staff whether they are concerned about this and a number have said no, because they are already compelled to have the vaccine for hepatitis B. That is a condition of deployment and staff see this vaccine as just as essential. That assuaged some of the concerns I had over compulsion. These are difficult, unprecedented times. We would not ordinarily want to go with compulsion, but the health of the nation is at risk and many people want to feel much more reassured that they, or their family members who are receiving care, are looked after by people who have been vaccinated.

Lord Scriven: Evidence-based policy is really important on this. Statistics from the Nuffield Trust show that, with the mitigations that healthcare and hospitals are putting in place, hospital-acquired Covid rates have been coming down since the middle of the year, while rates in the community have been rising. The reason for that is that the mitigation includes face-covering measures which, as the NHS Chief Nursing Officer, Ruth May, said in July,
“will remain in place across healthcare settings so that the most vulnerable people can continue to safely attend hospital”.
If that is the case, why was the Prime Minister not wearing a face covering when in a hospital this week?

Lord Kamall: I thank the noble Lord for that question and other noble Lords for their questions. I am not the Prime Minister’s keeper; it is as simple as that. We all decide for ourselves. I wear a mask whenever I can and when I talk to different people, I make sure that we are seen to be wearing masks. I thank noble Lords across the House who are leading by example by wearing a mask.

Baroness Pitkeathley: Patients in care homes and hospitals suffered very badly from not receiving visitors during the three lockdowns. Family ties were strained and a lot of extra distress was caused. From next April, if all, or the majority of, health service staff are vaccinated, what plans do the Government have for ensuring that visitors do not bring Covid into hospitals and care homes?

Lord Kamall: In many cases, that decision will be left to the individual trust or care home. We know that a number of care homes and different trusts are already concerned about unvaccinated visitors. Many will know already that during the previous lockdowns it was very difficult to visit your loved ones in hospital. I was not able to see my father between January last year and when he died last September. It was incredibly challenging, but we understood the reasons given by the care homes.

Lord Watts: The wearing of masks is a public health issue. It should not be left to individuals to make a decision on whether or not to wear a mask  when they are coming into contact with vulnerable people. Can the Minister explain why the Prime Minister takes the view that he does not need to wear a mask?

Lord Kamall: I thank the noble Lord for pressing on that point, as a number of others have. I am assured that the Prime Minister and his team followed all the rules that they were required to follow in that hospital, whether about face masks or otherwise. This is what I have been informed and it is all I can report.

Baroness McIntosh of Hudnall: Since we have a little time left, could I ask the Minister to go back to the question of the support that care homes, hospitals and other healthcare settings may need in the not unlikely event that they will lose staff as a result of this policy? I completely understand that vaccination is highly desirable and that the intention is to encourage people to be vaccinated. However, it is pretty clear that some will not be and that will have an impact. What support will be on offer in healthcare settings to people who are having to cope with the impact of losing staff as a result of this policy?

Lord Kamall: In consultation with the social care sector and the wider NHS, including trusts, discussions have looked at the impact and what would happen, but also how to make the message more positive, how to encourage staff to take up vaccines and how to listen to their concerns. In some cases, employers have said that they do not feel that staff have given a legitimate reason for not taking up the vaccine, but they are also under pressure from patients’ families to make sure that they employ care staff who have been vaccinated. They are trying all the different areas of persuasion, including targeted campaigns and one-to-one conversations in some cases, to encourage them as much as possible. At the end of the day, even before the introduction of vaccinations as a condition of deployment, many care homes were already trying to push their staff to take vaccinations because they are concerned about their patients.

Lord Scriven: As we have time, the Minister has just said from the Dispatch Box that the Prime Minister was following the rules of the trust he visited. That trust says on its website that you must
“wear a face covering when you enter the hospital until you leave”,
and adds:
“You must ensure that you wear your covering or mask throughout your visit and you must not remove your face covering/mask or kiss your loved one.”
By not wearing a mask, in either a clinical or non-clinical area, how was the Prime Minister carrying out the policy of that trust to try to save vulnerable people from being contaminated with Covid-19?

Lord Kamall: Whenever I have visited hospitals during the lockdowns or restrictions, we have sought advice from the staff around us. We have asked what measures are appropriate and whether we should keep face coverings on at all times. There have been times  when they have said that, in particular areas, you can take your mask off. I was not at the visit yesterday, as I am sure the noble Lord will acknowledge—in fact, I was here answering questions—so I cannot go into detail. However, having visited hospitals myself, I am aware that you go in wearing a mask by default, but there are times when staff say, “In this area, you can take it off”.

Lord Campbell-Savours: Is not the answer to the question asked by my noble friend that the Prime Minister was acting irresponsibly and was wrong?

Lord Kamall: I am afraid that I was not there, so I do not know what advice he had been given at that moment by that particular trust. Noble Lords can do trial by TV as much as they like, but while you go in with a mask on by default, when you are there with workers from the NHS who are often giving advice, they may say at times, “In this part, it’s fine. You do not need to do that.” That may well have been the case, but I am afraid that I do not know the details.
Sitting suspended.

Police, Crime, Sentencing and Courts Bill
 - Committee (7th Day) (Continued)

Clause 96: Restriction on multiple cautions

Amendment 187

Lord Paddick: Moved by Lord Paddick
187: Clause 96, page 84, leave out line 18Member’s explanatory statementThis is consequential on Lord Paddick’s objection to Clause 97 standing part of the Bill.

Lord Paddick: My Lords, in moving Amendment 187 in my name I will speak to the other amendments in this group. I ask the Committee to forgive the repetition.
I understand the Government’s desire to simplify out-of-court disposals and take the pressure off courts but, as I have said in several previous groups, research has shown that moving to the system suggested by the Bill, as piloted by some police forces, is likely to cost more, do nothing to reduce offending and have little or no impact on victim satisfaction.
I have also suggested that the complexity of having to impose conditions in every case when a police caution is given, whether a diversionary or community caution, is likely to have the unintended consequences of increasing the number of cases dealt with by no further action being taken and the number of cases sent to court—anything to avoid the complicated process of setting, arranging and monitoring compliance with the conditions that must be set whenever anyone is given a police caution. Research already shows a reduction in the number of out-of-court disposals in recent years, and these changes are likely to result in further reductions.
Clause 97 abolishes all other forms of out-of-court disposal. I will give some illustrations of what this means in practice. A young lawyer or medic who, completely out of character, has too much to drink, gets drunk and ends up making a nuisance of himself is arrested and, once sober, is given a simple caution. The salutary effect on such an individual’s future behaviour is dramatic, the impact on his career prospects negligible and the amount of time taken by the police to deal with the case minimal. If the impact of his being stopped and spoken to by a police officer has an immediate sobering effect, he might even be given a fixed penalty notice for disorder and sent on his way. Neither of these out-of-court disposals would be available under the Bill as drafted.
If someone drops litter, is seen by a police officer and refuses to put it in the bin, at the moment, that police officer can issue a fixed penalty notice for disorder. Under the Bill, the only course for the officer would be either not to take any action at all, undermining both the law and the authority of the police, or to arrest the person and take them to a police station so that they can be cautioned with conditions attached. I am at a bit of a loss as to what conditions might be attached to a caution for littering, but perhaps the Minister can enlighten the Committee.
Altogether, there are currently 27 minor offences that can be dealt with by a police officer issuing a fixed penalty notice on the spot, from cycling in a park where cycling is prohibited to possession of khat or cannabis. In all these cases, the only way to proceed, if this Bill passes unamended, would be to make an arrest, so that a community or diversionary caution with conditions attached could be administered.
This is a recipe for an increase in anti-social behaviour that goes unchallenged, because police officers faced with the bureaucracy of arrest and a community or diversionary caution with conditions attached will look the other way. What is unclear—the Committee needs to know this, and if the Minister cannot answer from the Dispatch Box, I ask him to write to me—is what happens to cannabis and khat warnings where people who have cannabis or khat found on them are seized by a police officer and a warning is given to them on the street. I would argue that that is a type of out-of-court disposal. Is this also to be outlawed by the Bill? If it is, it will have serious consequences for police resources.
What is proposed by this clause, with community and diversionary cautions being the only out-of-court disposals allowed, will result in fewer people having any action taken against them for anti-social behaviour and significant police resources being used to deal with minor offences. That is why Clause 97, which abolishes other forms of out-of-court disposals, such as fixed penalties for disorder, should not stand part of the Bill and the simple police caution should be retained. I beg to move.

Lord Ponsonby of Shulbrede: My Lords, the amendment from the noble Lord, Lord Paddick, is to retain simple cautions. The examples he gave illustrate the point I made earlier: that this is a very complex area, with a lot of history of government trying to manage out-of-court disposals in different ways. He gave  the example of 27 minor offences which can be dealt with by fixed penalty notices and asked what happens with cannabis and khat warnings. I would be interested to hear the answer.
The noble Lord asked—I think rhetorically—what else a police officer can do other than give a conditional caution. The answer is that they can do nothing. They can give the person they are dealing with a talking to; in my experience, police officers are perfectly capable of doing that. Nevertheless, as I said in an earlier group, this is a very complex area. The Government have tried a number of different out-of-court disposal regimes in recent years; I am not aware that any approach was particularly better than previous ones. Indeed, the noble Lord gave examples of the not obvious success of the pilot schemes for this regime.
Nevertheless, I think that out-of-court disposals are appropriate. They need to be handled in a proportionate way and with the right amount of training for the police officers dealing with them. Clearly, an appropriate level of intervention would, one would hope, be for the benefit of the offenders, given that it is very likely that a large proportion of the offenders will be drug and alcohol users. Having said that, I will be interested to hear why the Minister thinks a simple caution is not appropriate to retain on the statute book.

Lord Wolfson of Tredegar: My Lords, it is fair to say that this group of amendments goes to the heart of why reform to out of court disposals was needed and the aims of the new cautions framework. The background is that the public consultation on out of court disposals showed that more than half of respondents did not believe that they deterred offending. As such, it was felt that there should be a framework with more meaningful and proportionate consequences and a move away from “warnings” and “simple cautions” to a system with, on the one hand, repercussions for the offender but, on the other, an opportunity to reduce reoffending and address often complex needs.
The noble Lord, Lord Paddick, has indicated his intention to oppose Clause 97 standing part of the Bill. Removing that clause would allow existing cautions to remain in use. That would undermine the entire reform and change that we are trying to bring about and would continue the current inconsistent approach that we have across police forces. We do not want to stick with the status quo; we want to improve it.
As I understand it, Amendments 187 and 188 are consequential to the removal of Clause 97. Amendment 189 seeks to retain the option to use the simple caution as well as the new diversionary and community cautions. It also means that, if any existing cautions were retained, the giving of these disposals to offenders would then be taken into account in any repeat offending. Clause 96 deals with the provisions of restrictions on multiple use of cautions, so I will not expand further on that point at this stage.
Following the joint government and police review of out of court disposals between 2013 and 2014, it was established that the existing disposals framework needed reform. The National Police Chiefs’ Council developed its own two-tier out of court disposal strategy  in 2017, which removed the need for the simple caution, penalty notice for disorder and cannabis and khat warnings. I will come back to the specific point the noble Lord, Lord Paddick, asked about. Since then, one-third of forces have moved to the two-tier framework, using conditional cautions along with the non-statutory community resolution. We believe that attaching conditions to the caution means that the recipient must engage in some way with the outcome as well as accepting responsibility. That is a more proactive and robust approach than the simple caution, which requires no further engagement by the offender and is often nothing more than a warning.
Removal of the simple caution does not mean that there is no provision for offenders where conditions requiring higher levels of engagement are considered unsuitable. As I said in response to an earlier group, we want to ensure a wide range of conditions is available, including those that require a low level of engagement on the part of the offender; indeed, it goes down at the bottom end to an expectation not to reoffend, so that such conditions can be selected where appropriate. The critical point is that there should be flexibility in the conditions that may be set in terms of the level of engagement that is required from the offender, so that the authorised person has discretion in this regard when choosing the conditions.
On the specific point of cannabis and khat warnings, which the noble Lord, Lord Ponsonby, also echoed, the community resolution already replaces cannabis and khat warnings. This is NPCC policy. The community resolution will be retained by the police as the only non-statutory option. Police are well practised in using the community resolution for this type of drug possession, and it does not require a formal admission of guilt either.
The final point I make is that the noble Lord, Lord Paddick, implied—I think; I may have got this wrong—that removing the simple caution meant that a low-level offence could be dealt with only by means of a diversionary or community caution. Fixed penalty notices do not fall under the reform to out of court disposals and will still be available for use where relevant. The example of littering given by the noble Lord may be dealt with by those means or indeed by community resolution, which is an alternative and non-statutory disposal that police forces will retain. I hope that answers his question on the khat point and also his point on littering.

Baroness Chakrabarti: Does the Minister not agree that good law is about a combination of rules and discretion? I quite understand that he is here to advocate his new scheme and approach, which the Government have considered and think is the way forward, but why not have a little residual discretion for some of the examples that the noble Lord, Lord Paddick, gave? The Minister said that a simple caution is really a bare warning but, occasionally, is not a bare warning better than nothing at all in terms of a police officer, in reality—sometimes underresourced, in difficult times—doing his job in the community?
Why do we have to be so rigid that we make a simple caution—which of course is not ideal and does not have the diversions and other things suggested—  impossible to give? In circumstance where there is a student who is annoyingly drunk but has not really harmed anybody—as in the example given—why not allow a bare warning rather than no warning and no action at all?

Lord Wolfson of Tredegar: Without turning this afternoon into a jurisprudential seminar, I certainly agree with the thrust of the point made by the noble Baroness that good law is often a combination of rules and discretion. At the level of generality, I would agree. However, it is not right to say that this is rigid; the conditions that can be applied are extremely flexible.
There are really two parts to the answer. First, within the new cautions regime, there is a great deal of flexibility as to the conditions that can be set out. If the noble Baroness looks at Clause 80 for diversionary cautions—which is mirrored in Clause 89 for community cautions—subsection (4) sets out the restrictive conditions and goes down to the one I mentioned in my response to the noble Lord, Lord Paddick, which is
“not to engage in specified conduct”.
That is, essentially, the lowest form of engagement when no other suitable conditions exist. That really creates a condition where the offender is expected not to commit any further offences. That is a very low level of engagement, and when that is suitable will be a matter for the code of practice.
The second part of the answer is to repeat the point I made earlier that other forms of out of court disposal are still available—I mentioned fixed penalty notices and community resolution—so, with respect, I do not agree that we are putting in place a rigid regime. The conditions are flexible and there are some disposals that are outside the cautions structure, even now.
I do not think I did so before, but I invite the noble Lord to withdraw his amendment.

Lord Paddick: Can the Minister clarify something? I think he said something along the lines that the lowest level of condition is that the offender should not engage in similar activity again. So, if somebody is arrested and cautioned and the police say to them “Don’t do it again”, is that a condition attached to a caution?

Lord Wolfson of Tredegar: As I said a moment ago, this relates to Clause 80(4) and Clause 89(4), if the noble Lord looks at the last condition in each of those subsections. The code of practice, as I said in response to the noble Baroness, Lady Chakrabarti, will make further provision for the circumstances in which that would be appropriate. Importantly, and I think differently from the simple caution, the police would still need to monitor conduct to ensure that someone had not reoffended, but that would be less onerous. This is a good example of where the new structure that we are putting in place preserves the best of the old regime but still has it on a more structured basis, focused on preventing reoffending as well as on the rehabilitation of the offender.

Baroness Chakrabarti: Forgive me, but I sense an element of unworldliness about this. If it is appropriate in a given case for there to be just words spoken and a  warning, and it would be proportionate, do we really need the constable in question to go through the process of the recording and the monitoring?
I say no more on that but, if the Committee will indulge me, I would like to mention that Mr Gareth Dowling, the doorkeeper, is retiring today after some years of service and I hope that the Committee, if not the whole House, will join me in congratulating him and wishing him all the best for the future.

Noble Lords: Hear, hear.

Lord Wolfson of Tredegar: May I first deal with the caution points? I do not want to run those two topics together. On cautions, there is a fundamental point here. The simple caution is really what it says on the tin: a simple caution. In circumstances where the officer decides that it is appropriate to give a community caution with the lowest level—the one that we are talking about now—importantly, to get there, the officer or the authorised person still has to go through the process of speaking to the victim, thinking about what other options are available and looking at what other conditions are available. That process is valuable in all cases. That is one of the strengths of the new regime. I accept that that requires more consideration, but you end up with a system which is more robust and suitable and which results in a more proportionate response. Quite separately, I join the noble Baroness in what she said about Mr Dowling.

Lord Paddick: I thank noble Lords who have participated in this short debate and am grateful for the qualified support from the noble Lord, Lord Ponsonby of Shulbrede.
If I heard the Minister right, he referred to public consultation and the proportion of respondents who said that they did not believe that out-of-court disposals reduced offending. Is he really saying that the Government are now legislating on the basis of public opinion rather than on the basis of evidence? There is no evidence that the two-tier system that has been piloted by a third of forces is any more effective, as I have quoted at length and repeatedly—which the Minister ignores. There is no evidence that this will be a better system for reducing offending. With the greatest of respect, just because the Government assert that it will be does not mean that it is.
I am struggling here. If we take the example of somebody who is arrested for being drunk and disorderly and who the police want to caution, they now have to attach conditions. Presumably, the lowest level of condition will be, “You should desist from behaving like this in the future.” Then the Minister says, “But of course the police will have to put measures in place to monitor the accused’s future behaviour.” I am completely at a loss as to what sort of monitoring the Minister has in mind in such circumstances. The more the Committee examines these proposals—perhaps I should say the lack of them, bearing in mind that we will not see whatever is contained in the code of practice until well beyond the Bill receiving Royal Assent—the more the whole thing begins to unravel.
Clearly, I will apologise to the Minister and to the Committee if I have misunderstood the legislation in terms of withdrawing the police’s ability to give fixed  penalty notices for disorder. I hope that the Minister will do the same if it turns out that I am right and he is wrong. However, at this stage, I beg leave to withdraw the amendment.
Amendment 187 withdrawn.
Amendment 188 not moved.
Clause 96 agreed.

  
Clause 97: Abolition of other cautions and out-of-court disposals
  

Amendment 189 not moved.
Clause 97 agreed.
Clause 98 agreed.

  
Schedule 10: Cautions: consequential amendments

Amendment 189ZA

Lord Paddick: Moved by Lord Paddick
189ZA: Schedule 10, page 231, line 15, leave out sub-paragraphs (2) and (3) and insert—“(2) In paragraph 1(1)—(a) in the opening words, for “—” substitute “at the time the caution is given.”, and(b) omit paragraphs (a) and (b).””Member’s explanatory statementThis amendment would remove the spending period for cautions.

Lord Paddick: Forgive me for the delay, my Lords—so many amendments, so little time, as it were.
I am grateful to Transform Justice for its briefing on this issue and for its assistance in drafting this amendment. Currently, simple cautions with no conditions attached are considered “spent” within the meaning of the Rehabilitation of Offenders Act 1974 as soon as they have been given. This means that they do not have to be disclosed to potential employers. The Government propose to abolish simple cautions, so those who would previously have received a simple caution, which do not have to be disclosed, could potentially receive a diversionary caution, which, like conditional cautions currently, have to be disclosed for three months after the caution is given. Given the Government’s commitment to reform rehabilitation periods elsewhere in the Bill, we suggest that the rehabilitation period for diversionary cautions should be removed. In Part 11, Clause 164 already sets out various changes to the rehabilitation periods for different sentences. Removing the diversionary caution rehabilitation period should be added to the list of those changes.
The Government argue that a three-month spending period is required for a diversionary caution to support protection of the public. There is strong evidence that employment is one of the most, if not the most, important factors in enabling people to cease offending behaviour and to move on to crime-free lives as productive members of society. A three-month rehabilitation period is short enough to have little impact on public protection, but its existence will require people in employment or  seeking employment to declare the caution and risk losing their job or be refused employment. It will also act as a barrier to those seeking education and volunteering opportunities. Research has found that employers discriminate against people with criminal records and that most do not differentiate between a caution and a conviction. Introducing a spending period for the diversionary caution will therefore hamper people’s efforts to gain employment while doing little for public protection. Diversionary cautions should follow the spending regime for the existing simple caution and end at the point at which the caution is given. I beg to move Amendment 189ZA.

Lord Carlile of Berriew: My Lords, I support the noble Lord’s amendment. If I may, I will elasticate the rules of order slightly by referring to some other issues relating to the spending of cautions and of convictions.
In 2013 and 2014, an ad hoc committee of Members of this House and of the other place reported, sponsored by the National Children’s Bureau and the Michael Sieff Foundation, on the youth courts. I was part of that group, as was the noble Lord, Lord Ponsonby, who was very valuable member, and as was a certain Back-Bencher called Robert Buckland, who later became Secretary of State for Justice and Lord Chancellor. To be fair to him, despite having gone to the other side of good behaviour by becoming a member of the Cabinet, he always remained personally committed to what we had found. Our second recommendation was this:
“Children who have committed non-serious and non-violent offences, who have stopped offending, should have their criminal record expunged when they turn 18.”
I believe that that is a very important principle for which there is supporting evidence around the world. I am disappointed that the Bill is a touch pusillanimous in not picking up that recommendation—and I am grateful to say to the Minister that a number of our recommendations have been picked up.
If the noble Lord were to speak to Charlie Taylor, who held a very important position in the Ministry of Justice at that time, as chairman of the Youth Justice Board, and who is of course now Her Majesty’s Chief Inspector of Prisons, he would find that he is also very supportive of that recommendation, with his huge experience of dealing with young people, first as a teacher and then in the criminal justice sphere.
The evidence that I refer to comes in part from the United States. Some of its states have a graduation system for young offenders and, when they reach the age of majority, their youth offending record is expunged —unless the offences that they have committed have been quite or very serious, in which case a graduation period is built in for further time for good behaviour to be demonstrated. They then graduate, and it is seen as a high-school graduation. We need something very similar here.
A number of noble Lords in the House, like me, have been Members of the other place, and we probably all have experience of young people coming to us in their 20s and saying, “I could not get a job as a school teacher because I was cautioned for possessing cannabis when I was 17 years old.” It does not seem right to me,  or, I suggest, to any reasonable person, that people should be lumbered with that sort of disadvantage when they have not merely gone straight but have actually built an important and useful life in society.
The other thing that I, as a chair of a mental health charity, will say in that context is that the most valuable people in our charity are people with lived experience of the issues that they are dealing with, whether it is drink, drugs, gambling or whatever. But those people should have the opportunity to go up the management scale to fulfil their potential.
Of course, we have all read and heard about the great work that Timpson does in employing people who come out of prison. For people to be able to graduate out of their youthful offending is an imperative, in my view, and I very much regret that we have waited seven years since the report that I referred to was produced. I urge the Minister—I do not expect him to reply immediately—to go away and come back with some reflections so that we could table an amendment on Report that would make the law change in this very important detail.

Baroness Butler-Sloss: My Lords, I am very interested in what the noble Lord, Lord Carlile, has just said. Although, again, I am not strictly following the amendment of the noble Lord, Lord Paddick, I very strongly support it and ask the Government to think again.
I happen to have had some limited personal experience of young people who had offended between the ages of 12 and 18 and who were acting for youth groups, mentoring other young people to prevent them from offending, because they had learned. I have met half a dozen of them. All were black and doing valuable work in their 20s, but were having the most appalling difficulty in finding a decent job that would be commensurate with their undoubted abilities. I will tell you the sort of case that happens. A child of 14 won a prize at school and took it home to show his family. His elder brother threw it away and said, “Don’t be so stupid. Why don’t you behave like us? That’s an utter waste of time.” He then went on to offend, and, aged 19 or 20, he told me that he had learned that this did not pay and that he had to lead a proper life. He was doing the most wonderful job, teaching other young black people, under the age of 18, how not to offend. It is crucial that what the noble Lord, Lord Carlile, has just said is picked up by the Government and taken forward.

Baroness Chakrabarti: My Lords, I have to agree with the three Members of the Committee who have just spoken. I will deal with the two proposals in turn, first that relating to children and their convictions being spent when they turn 18. That is absolutely compelling as an argument. I have just one thing to add: there is a huge differential in the experiences of different children in our communities. For example, there are looked-after children—the state not being the best parent—who will be prosecuted and will attract convictions, before their majority, for bad behaviour that simply does not get prosecuted when a child behaves in that way in the family home. This could be common assault or criminal damage. It is common practice for looked-after children to be in the criminal  justice system in circumstances where their peers elsewhere would not. To not to get a second chance on turning 18 is a terrible indictment on our society.
I encourage the Minister to take the expert advice from the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Carlile, with all his experience of penal reform, and to do something about this. Things are compounded still by there being no right to be forgotten when it comes to the internet. The law has to push back even harder to try to rehabilitate people, particularly children, in the light of so much of our lives and our histories being on the internet.
I shall respond briefly to the noble Lord, Lord Paddick. A non-court disposal administered initially by a police officer should be immediately spent, as a matter of good practice but also as a matter of principle. If someone has given up the opportunity to have the matter dealt with in court, that should happen in many cases. However, there should be a benefit, and that should be that the disposal is immediately spent. It is an incentive to engage with it, but it is also right in principle. The Rehabilitation of Offenders Act 1974 was a wonderful thing, but we are a long way from its ethos and principles. It has been undermined by an exemption order that has grown, in my experience, every year and it has been undermined by the growth and rise of the internet. This Committee really needs to listen to the noble Lords, Lord Carlile and Lord Paddick, in their proposals, and push back very hard in the opposite direction.

Viscount Hailsham: My Lords, I will make a very brief point in support of what has just been said by the noble Baroness and the noble and learned Baroness. There are a number of professions where you have to establish that you are a fit and proper person. I act as a legal assessor to the Nursing and Midwifery Council, and I am aware of the registration process: you have to assert that you are a fit and proper person. I can see that a caution of the kind that we have been discussing might stand in the way of a registration being effective, and that would be a great tragedy.

Lord Ponsonby of Shulbrede: My Lords, I thank the noble Lord, Lord Paddick, for tabling his amendment. As we have seen through this debate, it has inspired many contributions on a wide range of points about whether and when a caution should be spent: after three months or immediately when the caution is given.
I remember sitting on the Michael Sieff Foundation report, and our discussions about whether all youths should effectively have their criminal records expunged unless there were particularly serious matters in there. I also remember debating that point very well, because I was sceptical about it at the time. The argument that I found most convincing was from the lady who was an academic helping us. It was based on the inadequacy of the record-keeping system for having any sort of differentiated approach for expunging a criminal record. It is really much better and more reliable to expunge the lot unless there are extreme reasons not to. That way gave young people the best chance of getting a good job and starting their career.
All noble Lords who spoke in this debate made interesting points. My noble friend Lady Chakrabarti made one particular point about the record-keeping of the internet. This is a huge issue; the internet does not forget. Of course, employers make their own checks through the internet, whether or not they have been given permission to. In my experience, young people are conscious of this and spend a certain amount of time editing their internet history to make sure they get any job they are offered. That is a flippant point. Nevertheless, this was an interesting debate and I would be interested to hear the Minister’s reason for why a caution should not be spent at the time it is given, rather than after three months or whatever period it was. I too had the briefing from Transform Justice, which made a good case, so I look forward to the Minister’s response.

Lord Wolfson of Tredegar: My Lords, first, I will pick up one point from the last group to make it very clear: if I have made any errors, I am happy to correct them. As far as I am aware, there is no doctrine of ministerial infallibility; I say that with all due respect to my colleagues. Because the Cabinet table is still terra incognita to me, I hope I am on the right side of good behaviour even speaking from this seat.
I reassure the noble Lord, Lord Paddick, that we are not introducing any changes to the current regime for rehabilitating offenders who receive a caution. The proposed diversionary caution replicates the current system for the conditional caution, with the same spending period. I also point out that the lower-tier community caution being introduced has no spending period, and therefore mirrors the current adult simple caution. In effect, we are maintaining the position that pertains with a spending period for the lower-tier and higher-tier cautions. We think that is a sensible position to take.
I agree with the noble Baroness, Lady Chakrabarti, that the Rehabilitation of Offenders Act was, to use her phrase, a wonderful thing. It is an important piece of legislation and the principle underpinning it is important. It seeks to strike a balance between protecting the public and rehabilitating offenders, and it does that by requiring that in most cases a criminal record must be disclosed for a period of time but—this is the important “but”—after that period, the offender no longer needs to disclose it for most types of employment. I hear the point made by my noble friend Lord Hailsham that cautions sometimes have to be disclosed, but it depends for what purposes and when. There is an important spending period.
The real question at the heart of this debate is whether diversionary and community cautions should have the same spending periods. It is at that point that I respectfully diverge from the approach of the noble Lord, Lord Paddick, because, if a diversionary caution were to be treated as spent at the time a caution is given, it would suggest that there is nothing in favour of public protection that requires the disclosure of that caution, and the offending it relates to, for even a limited time—up to three months—after it has been given. That position is simply not tenable, once we recall what the diversionary caution is all about. Let  us remember that the diversionary caution requires the authorised person to be satisfied that there is sufficient evidence of offending to charge the offender, and the offender themselves must both admit to that offending and consent to the giving of the caution. Public protection therefore continues to be engaged after it is given as, unlike a community caution, criminal proceedings may be instituted if the offender does not comply with the conditions.
Over and above that, again unlike the community caution, the diversionary caution can be given for indictable offences, admittedly in exceptional circumstances and with permission of the Director of Public Prosecutions. That again highlights the importance of placing a time-limited spending period on cautions that relate to more serious offences. Removing, therefore, the spending period for diversionary cautions blurs the important distinction between the two sorts of caution.
For the out-of-court disposal regime to succeed, offenders must take the offer of diversion from prosecution seriously. One should remember that it is called the diversionary caution because it is a diversion from the court process and prosecution. Equally importantly, victims and the public must have confidence in its use. I have already mentioned that a review back in 2013-14 showed that over half of respondents did not believe that out-of-court disposals in their current form deterred offending.
The spending period has another upside. It creates an incentive for the offender to meet the conditions of the caution earlier than the three-month period, given that the caution is spent as soon as the conditions are satisfied. That is important. If one gets on with it and meets the conditions earlier than three months, the spending period ends there. There is an incentive, therefore, to get on with it because one’s spending period will be shorter.
The amendment also proposes to remove the same rehabilitation period that applies to youth conditional cautions and provides that such cautions are spent immediately when given for most purposes. Essentially for the same reasons that I have given in relation to the adult diversionary caution, we consider that the position is not tenable. A youth conditional caution is distinct from a simple youth caution and should be disclosed until the conditions have been met or three months have passed, whichever is sooner.
However, I draw the Committee’s attention to Clause 164, regarding the proposed reduction to rehabilitation periods for those receiving custodial sentences or other disposals on conviction. Rehabilitation periods are not set arbitrarily. We give serious thought to them and keep them under review to ensure that they are fair, and that the balance I mentioned earlier continues to be met.
Although I am now straying from the amendment because our debate ranged more widely, perhaps I may respond to the noble Lord, Lord Carlile of Berriew, the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Chakrabarti, and my noble friend Lord Hailsham. I hear their points about cautions. We seek to maintain a proper balance here. I hope that it is fair for me to say that the points raised go beyond  the scope of the amendment, but I have heard them. I will reflect on and discuss them and, if noble Lords who have made those points think that it would be helpful, that might well include discussions with them. For the reasons that I have set out, I invite the noble Lord, Lord Paddick, to withdraw the amendment.

Lord Paddick: My Lords, I thank the noble Lord, Lord Carlile of Berriew, for talking beyond the amendment, in that the Bill’s provisions apply to adults rather than children. He made extremely important points, supported by noble Lords around the House. We support what he was talking about.
The Minister rightly said that a community caution has no spending period, whereas a diversionary caution has a three-month period. He said that that was no change from the existing position. However, there is nothing to stop the police giving someone a diversionary caution in circumstances where, in the past, a simple caution with no spending period would have been given. We have heard many cases, often questionably appropriate, of serious offences being dealt with by the police by means of a simple caution with no spending period attached to it.
The Minister tried to bolster his argument by saying, “The accused must admit the offence and agree to the caution.” That is exactly the same with a simple caution: the police cannot give someone a simple caution unless they admit the offence and agree to the caution.
There is a real danger here that people who currently get a simple caution, which there is no need for them to disclose to, for example, an employer, will have to disclose it in future, with all the negative consequences that that might entail. At this stage, however, I beg leave to withdraw the amendment.
Amendment 189ZA withdrawn.
Schedule 10 agreed.

  
Clause 99: Regulations under Part 6
  

Amendments 189A to 189D not moved.
Clause 99 agreed.

  
Clause 100: Interpretation of Part 6
  

Amendment 190 not moved.
Clause 100 agreed.

  
Clause 101: Minimum sentences for particular offences

Amendment 191

Baroness Massey of Darwen: Moved by Baroness Massey of Darwen
191: Clause 101, page 86, line 14, leave out from “committed” to “the court” on line 15 and insert—“(i) by a person aged 16 or 17; or(ii) by a person aged 18 or over before the day on which section 101 of the Police, Crime, Sentencing and Courts Act 2021 came into force,”Member’s explanatory statementThis amendment ensures that no children are affected by the changes to mandatory minimum sentences in Clause 101.

Baroness Massey of Darwen: My Lords, I shall speak to amendments of various kinds in this group, all related to youth justice. I am grateful to the secretariat of the Joint Committee on Human Rights, of which my noble friend Lord Dubs and I are members. We have discussed the Bill at great length, interviewed people with expertise on each clause and, as noble Lords are aware, prepared relevant reports. It has been a heavy load on our secretariat and I am grateful for their dedicated work. I am also grateful to the Youth Justice Board, the Children’s Rights Alliance, the Youth Justice Legal Centre and other children’s organisations for their contributions.
Amendments 191 to 194 in Clause 101 would ensure that no children were affected by the changes to mandatory minimum sentences in Clause 101, based on paragraphs 17 to 27 of the JCHR report. Clause 101 will allow a court to diverge from imposing a minimum custodial sentence for certain crimes, including crimes involving weapons committed by those aged 16 or 17, only where there were exceptional circumstances. This increase in the limitation on judicial discretion conflicts with the need for sentencing decisions to be individualised and for the welfare of the child to be a primary consideration. Custody for children, as has been stated in many cases, must remain a measure of last resort. Witnesses told the JCHR that limiting judicial discretion was inherently incompatible with the best-interests principle, the legal duty that the best interests of the child must be a primary consideration in any action by a state body, including a court. These principles reflect international standards and are a fundamental protection for the rights of the child.
This set of amendments would amend Clause 101 so that no children would be affected by its provisions. We have heard about the difficult circumstances of many children who interact with the criminal justice system, many of whom have complex needs that should be appropriately considered in sentences. The Bill limits the ability for such consideration by limiting judicial discretion at a time when there is a growing awareness of child criminal exploitation.
The amendment to leave out Clause 103 is based on paragraphs 76 to 82 in parts 7 and 8 of the JCHR report. Clause 103 would make it possible for judges to impose whole-life orders on offenders aged 18 to 20 in exceptionally serious circumstances. Sentences giving offenders no possibility of rehabilitation, and no prospect of release if that rehabilitation was achieved, would breach Article 3 of the European Convention on Human Rights. While it has concluded that whole-life orders for offenders aged 21 and over do not violate Article 3 of the ECHR, the JCHR is concerned about the implication of extending these sentences to offenders aged 18 to 20.
The courts and the Justice Committee have accepted that turning 18 is not a cliff edge. Young offenders aged between 18 and 20 are still maturing and have significant potential to change. Extending to this age group a sentence that makes the prospect of these offenders ever being released unlikely comes perilously close to the Article 3 threshold. It also runs counter to positive recent recognition of the need to treat young adult offenders as a category distinct from old offenders.  This amendment would ensure that the minimum age for imposing a whole-life sentence or order does not drop below 21.
Amendments 198 to 201 to Clause 104, which would remove any tariff starting points above the current 12 years, are based on paragraphs 28 to 39 of the JCHR report. Clause 104 introduces a range of starting points for tariffs for children given DHMP sentences. When setting the tariff period, the court must first allocate a starting point and then consider any aggravating or mitigating factors—plus the effect of the defendant’s previous convictions, any guilty plea and whether the offence was committed on bail.
Currently, the starting point for the courts when setting the tariff is 12 years for children of all ages. The Bill proposes a change to this starting point, depending on the age of the child. The changes would more closely align the starting points for older children with the equivalent offences for adults, while reducing them for a small number of younger children.
Life sentences for children have been criticised by the Committee on the Rights of the Child, whose interpretation of the UNCRC, while not legally binding, is authoritative. Increasing the length of time that children must spend in custody before they can be considered for release can be seen only as making DHMP even less aligned to the rights in the UNCRC, which the UK ratified in 1992. Scotland and Wales are looking at how the convention might be incorporated into law. I am not sure where they are with this—perhaps the Minister will know more.
The courts already have discretion to consider the different developmental stages of children and reflect this in the tariffs that they hand down for DHMP. Mandating the courts in legislation to treat older and younger children differently focuses too much on age and not enough on maturity or circumstances. It brings tariffs for older children so close to those faced by adults that the distinction between a child and an adult risks being lost. However, the JCHR accepts the imposition of shorter tariff periods for the youngest offenders as a step towards the recommendations of the UN Convention on the Rights of the Child. These amendments remove any tariff starting points above the current 12 years but retain the imposition of shorter tariff periods for the youngest offenders.
Amendments 202 and 203 to Clause 105 return to permitting the possibility of a reduction of the tariff at the halfway stage and beyond for those who have committed relevant crimes as children, based on paragraphs 40 to 45 of the JCHR report. Individuals detained at Her Majesty’s pleasure may apply for their tariffs to be reviewed. The policy was changed in February 2021 so that those sentenced when over 18 would no longer qualify for any review of their tariff. Clause 105 puts this into statute.
The age of criminal responsibility is 10 in England, Wales and Northern Ireland and eight in Scotland. Therefore, it is theoretically possible, although it would be exceedingly rare, for someone to commit a murder, be given a DHMP sentence and still be under 18 two years after the halfway point of their tariff, so as to qualify for additional review. Accordingly, the JCHR  was told that experts could not imagine a circumstance where someone would qualify for the additional review under this new provision. The effect of this clause is therefore to reduce the frequency of reviews of minimum terms and all but remove the possibility of a review beyond the halfway point. This should not happen.
The Government should seek to identify changes in the process of the DHMP tariff reviews so that they can lessen the distress caused to the families of victims. A child who commits an offence was still a child when they did so, even if they have reached the age of 18 while awaiting sentence or in custody. DHMP sentences should remain under continual review.
Amendments 204 and 206 to Clause 107 propose the main changes to time spent in custody, based on paragraphs 46 to 56 of the report from the Joint Committee on Human Rights. Clause 107 would change the custodial period for children serving sentences of detention of over seven years when sentenced under Section 250 of the Sentencing Act 2020. The Bill would require children serving these sentences to spend two-thirds of their sentence in custody rather than half, as is the case now, with the rest of their sentence spent on licence in the community. Article 40 of the UNCRC emphasises
“the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”
The UNCRC is clear that detention must be
“a measure of last resort and for the shortest appropriate period of time”.
A policy to increase the length of time children spend in custody requires proper justification. The Government’s relevant White Paper argues that spending longer in custody means that those who commit offences will have more time to focus on rehabilitative interventions. However, we heard from witnesses in the JCHR interviews that spending longer in custody hinders reintegration into society, and this would worsen reoffending rates. It is particularly important that for serious child offenders there is a clear focus on rehabilitation and reintegration into society. Clause 107 is likely to shift the focus towards punishment. This may well be counterproductive in reducing offending.
Children sentenced to detention under Section 250 of the Sentencing Act 2020 should, as they do now, spend half their sentence in custody and half being monitored in the community, to support their reintegration into the community. This amendment would prevent the release point for children sentenced to detention under Section 250 of the Sentencing Act 2020 being pushed back to two-thirds of the way through their sentence.
The UN committee has consistently expressed concern about the laws and procedures relating to children that do not properly take into account their age and maturity. I am not clear, for example, why the Government do not seem to be taking steps to address inequalities and any inequities that exist with children who were below the age of 18 at the time of committing the offence but who turn 18 prior to conviction. The UN committee will review our systems next year. I hope that it will be able to record progress. Amending this Bill would be a step forward. I look forward to the Minister’s reply.

Lord German: I will speak to the issues raised in these amendments. In summing up the last group of amendments, the Minister said that we had to achieve the proper balance between rehabilitation and punishment. This is even more important in the area of youth justice which we touched on—admittedly with a bit of elasticity of the rules—in the previous group of amendments, but which are particularly relevant here and will occur later in this Bill as we deal with other measures.
The balance between what I would call repair and support for young people and punishment is one of great importance, and we must adjust that balance with great care indeed. This country, along with many others, recognises that children should be treated differently from adults in the justice system. However, there is a concerning trend in this government-expressed Bill, particularly in Clause 104, towards what I would call harsher treatment of older children, and bringing the sentencing of children closer into line with adults. This clause in particular proposes extending whole-life orders in exceptional circumstances to offenders aged 18 to 20. These are the most severe sentences that can be handed down by the courts. The other clauses also touch on the balance that I am talking about.
The Sentencing Council gives a full explanation of why children have to be treated differently, referring to lack of maturity, acting impulsively, inexperience, emotional volatility and negative influences as factors that ought to be considered. In particular, it notes that children and young people are likely to be susceptible to peer pressure. The noble and learned Baroness, Lady Butler-Sloss, in her example in the last group, referred to exactly that sort of problem, when young people respond to peer pressure and then resent and turn from it afterwards.
Clause 101 would permit the court to diverge from mandatory minimum sentences only when there are “exceptional circumstances”. This is change from the current wording, “particular circumstances”. Neither “particular” nor “exceptional” have been defined in law, or in this Bill, or in the Explanatory Notes associated with the Bill. So who is going to interpret “exceptional circumstances”? If it is to be the Secretary of State, where does that definition exist? Perhaps the Minister could give us the definition at the end.
I went to the dictionary, as one always does to look up words, and looked up “exceptional”. There are at least four definitions, ranging from “only likely to happen very infrequently” to “having much more than average intelligence, ability, or skill”. With that breadth of difference in the understanding of “exceptional”, I am sure that there is a great deal of work to be done on that definition. There is a world of difference between “likely to happen very infrequently” and “beyond the average”, which is the other interpretation that you could give to this word. Either way, it is important that the Government tell us why they have made that change and what it means in practice.
My second point is about the discrimination elements in these amendments. The Government have recognised that these clauses have a disproportionate impact on black and minority ethnic children. We have only to turn to the Joint Committee on Human Rights report. Basing its comments on the Human Rights Act 1998, it says:
“Discrimination may be justified, but only where the difference of treatment pursues a legitimate aim and where there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised.”
The report says that many of the witnesses who were interviewed questioned whether the Bill had gone too far and does discriminate. So there are questions to be asked as to whether the Bill breaches the right that people have under that 1998 law.
The report further states:
“The government recognises the unequal effect of these measures in its Bill, but does not provide any mitigation”.
So can the Minister provide an explanation of the measures they propose to mitigate the impact of this discriminatory effect on BAME children? The House will need to consider whether these measures need to be written into the Bill, but I hope the Minister might undertake that action could be taken through government amendments.
The Bill proposes extending whole-life orders in exceptional circumstances to offenders aged 18 to 20, and these, as I said, are the most severe sentences. But those who offend as children should not lose the opportunity to benefit from the youth sentencing framework and rehabilitation periods, because system delays there are not of their fault.
The court delays we have at the moment existed before Covid and have been exacerbated since. In the year ending December 2019, before Covid, the average delay between offence and court completion was 160 days—nearly 23 weeks. That is eight weeks longer than in 2011, despite the reduction between 2011 and 2019 in the number of youth offence court cases. Covid has made this situation so much worse. Can the Minister confirm that those who cross the age threshold because of these delays will not be subject to a more severe sentence?
In a recent report from Her Majesty’s Inspectorate of Probation, the chief inspector said about the impact on black and minority-ethnic children:
“Half of the boys in the inspected cases had faced racial discrimination in their life; a third had been victims of criminal exploitation and a quarter had a disability … Yet many of these children are only receiving support with these needs for the first time through the criminal justice system.”
By looking at the criminal justice system we are looking at the cart, but the horse has already bolted from the stable. This is quite clearly unacceptable. Her Majesty’s Inspectorate of Probation says so, and I believe we need to revisit the amendments the Government have tabled to ensure that the proper balance is achieved, as the Minister said in response to the previous group of amendments. Proper balance does not mean turning the dial far more towards punishment than towards the repair of these young people.

Bishop of Durham: My Lords, I speak on behalf of the right reverend Prelate the Bishop of Derby on this occasion, who could not be here today. I add my support to Amendments 198, 199, 200 and 201, in the name of the noble Baroness, Lady Massey, which deal with tariff starting points or DHMP sentences as they relate to young people. The noble Baroness laid out well the case for amending Clause 104 so that it takes into account evidence on maturation. I will  briefly add the right reverend Prelate the Bishop of Derby’s perspective as a Lord spiritual and as part of a team of Bishops focused on Her Majesty’s prisons, particularly young offender institutions. She also declares an interest as vice-chair of the Children’s Society.
Children ought to be treated as children, and we resist any erosion of that in law. If we are to argue to the contrary we must be content to go against the trajectory of every other arena of English law. Eighteen is soon to become the age at which people can legally marry, leave education and join the Armed Forces. I urge noble Lords to reflect on this. If we project from this that children are to be protected from making decisions about marriage, education and even enlisting in Her Majesty’s Armed Forces until they reach a maturation point of 18, then the same logic surely must continue to apply in this instance.
The net consequence of Clause 104 would be more children spending longer in custody. Put simply, with very few under-16s impacted, the result would be more older teenagers receiving more severe sentences than is currently the case.
I intend to oppose Clause 103 being added to the Bill. Clause 103 would make it possible for judges to impose whole life orders on offenders aged 18 to 20. Our amendment would ensure that the minimum age for imposing a whole life order does not drop below 21. Although these are not legally children, in common with Clause 104, Clause 103 fails to take into account the Government’s 2015 response to the report by the noble Lord, Lord Harris, into the deaths of 18 to 24 year -olds in custody, where the Government agreed that
“It is widely recognised that young adults, particularly males, are still maturing until around 25 years of age.”
I am grateful to the Prison Reform Trust for its briefing on this and for highlighting that the origin of Clause 103 derives entirely from a single recent case. I understand the strength of feeling around that particularly tragic case, as it resulted in terrible loss of life. However, I do not believe there is any justification for extending whole life orders to young adults in this manner.
As Christians, we on these Benches might be somewhat predisposed to second chances and redemption through Christ. Under the proposals in this Bill, a young person, who the Government’s own research says has not reached full maturation, could be imprisoned for perhaps 60 or 70 years without any prospect of redemption or restoration. There is a wider argument here against whole life orders in principle but, until now, the law has recognised that for under-21s a sentence of this magnitude has been too significant a prospect, for the reasons already outlined. I am yet to hear a compelling case for change.
This is not to say that crimes ought not to be appropriately punished and justice served. It is to say that choices made by a neurologically immature young person should not determine the whole fate of that person’s life. Young adults who are still maturing are more capable of change and more likely to desist from crime in future.
We might even debate whether many of the young people in Her Majesty’s young offender institutions have had the ability to make real adult choices, free from abuse, coercion and manipulation, as the noble Lord, Lord German, just outlined. In reality, we are talking about a handful of cases, and children and young people deserve to be treated not as handfuls, but individually and separately.

Baroness Jones of Moulsecoomb: My Lords, I congratulate the noble Baroness, Lady Massey, on tabling these amendments. I will speak in particular on Clause 101. It is a real pity it is in the Bill, so I look forward to the Minister explaining exactly why it is here, particularly after having heard your Lordships.
Mandatory prison sentences could lead to a repeat of what happens in the USA, where there are three-strike laws, which are partly responsible for their obscene rates of incarceration: nearly 1% of the American population is in prison or jail, and this is very racially unbalanced. That is not to say that there are not many situations in which people should be sent to prison for these offences, but this blanket approach takes out any nuance whatever. It is easy for the Government to increase prison sentences and set mandatory minimum sentences; they can go around to the tabloids and say, “See what we’re doing. We’re being tough on crime”. It is much more difficult, but more important, to deliver real rehabilitation and diversion so that people do not reoffend and we do not take up huge amounts of taxpayers’ money keeping them in prison. I love the word that the noble Lord, Lord German, used—“repair”. We talk about rehabilitation, but “repair” is a superb word when talking about some of these very damaged children. Will the Government be adding any rehabilitation or diversion to these mandatory sentences, so that people do not offend three times, or will they just say “job done” and rely on the deterrent effect alone?
Most worrying to me on this list of offences is the inclusion of drugs offences. We should be moving towards a legalised and fully regulated drugs supply that is as safe as it can be. Creating a minimum sentence of seven years for drugs offences is a huge backwards step and will make the supply of drugs a lot more violent and dangerous, as people will have so much more to lose if they get caught.
On the previous amendment on the disclosure of cautions, I learned today from an amazing source that the illegal Prorogation of Parliament was wiped from the bound Hansard records. It apparently has ceased to exist in the bound version. It strikes me that, if we can delete all references in bound Hansard to the illegal Prorogation of Parliament—thanks to our esteemed Prime Minister Boris Johnson—surely we can be a little kinder to young people.
On “exceptional circumstances”, we all know that if you are a water company, exceptional circumstances mean you can release a sewage discharge any time you like, so, presumably, “exceptional” can be anything you want it to be, which is a little bit upsetting when it comes to the law, where words matter and should be more precise.
I look forward to the Minister’s explanation of all this, because I think it is rather nasty, hard-line and discriminatory.

Lord Ponsonby of Shulbrede: I thank my noble friend Lady Massey for introducing these amendments. She did so comprehensively, and I shall speak very briefly in support of them.
When most young people go into custody, they will serve half their sentence in custody and the other half out on licence or on a training order. The gist of the Bill is to increase the custody element to two-thirds, while the amendments would put that back to half the period. As I have said on other amendments, I have an aversion to sentence inflation, and this is an example of it. There is no evidence that I am aware of that it would reduce reoffending. Rehabilitation is available within both the youth estate and the adult estate, but it is so much better if it can be engaged while outside prison.
On principle, I am against sentence inflation. My noble friend has set out with her normal expertise why, when looking at a wider context of international law, this example of sentence inflation is not appropriate. I look forward to the Minister’s response.

Lord Wolfson of Tredegar: My Lords, these amendments, which I am grateful to the noble Baroness, Lady Massey, for putting down, all relate to custodial sentences for children. There were one or two points that she made that I shall perhaps respond to when we get to group 9, because there is a little bit of an overlap with some of the points there. I hope that she will forgive me if I respond to some of the points then, but I shall seek to respond to the majority now.
As the Committee will be aware, there is a separate and distinct sentencing framework for children. When sentencing children, the courts have to take into account two statutory considerations: the principal aim of the youth justice system, which is to prevent offending by children and young people, and the welfare of the child. I hope that overlaps with some of the points made by the noble Lord, Lord German, emanating from the Sentencing Council.
Although, therefore, custody should always be a last resort for children, there will be some cases where it is necessary, and we believe that the court is best placed to determine the appropriate sentence. But those who commit the most serious offences, and who pose a risk to the public, should serve an amount of time in custody which reflects the seriousness of their offending.
Against that background, let me go through the relevant clauses and amendments. Clause 101 relates to—and I underline this point—minimum sentences. The noble Baroness, Lady Jones of Moulsecoomb, on a few occasions referred to “mandatory” sentences. The clause is not headed “mandatory sentences”; the words “mandatory sentence” do not appear in this Bill, except in one place, Clause 101(8), which refers back—it is a pity that the noble Lord, Lord Paddick, is not in his place, because we have a nice piece of parliamentary drafting here—to Section 399(c) of the Sentencing Code “(mandatory sentence requirements)”, but that refers to a minimum sentence where the conditions set out in the clause do not apply.
I have two points to make in this regard. First, minimum sentences are not mandatory in the sense that they must be imposed. They are a mandatory  consideration that the court must make before passing a sentence unless the provision in the sentence is met. Secondly, the Bill does not introduce minimum sentences for under-18s for the first time. Offenders aged 16 or 17 are already subject to minimum sentencing provisions if convicted of threatening with a weapon or bladed article, or a repeat offence involving a weapon or bladed article.
The threshold for courts to depart from imposing a minimum sentence is open to them, the question being whether the test is met. This amendment aims to ensure that the change in the threshold will not apply to offenders aged 16 and 17 who are convicted of these two offences. In Clause 101 we seek to ensure that courts depart from the minimum sentence only in exceptional circumstances.

Viscount Hailsham: My noble friend clearly is right when he says that this is not a mandatory sentence, but does he accept that the purpose of this clause is to ensure that in the generality of cases, a custodial sentence is imposed?

Lord Wolfson of Tredegar: The purpose of a minimum sentence is that unless the threshold is met—we will debate in another group what that threshold should be—the minimum sentence is imposed. There is nothing between us on how it works; there obviously is on whether it is a good idea. I hope that is fair.

Baroness Chakrabarti: I am sorry to interrupt the Minister but in sentencing law and in the criminal justice system, minimum sentences are currently referred to as “mandatory minimum sentences”, subject to thresholds and exceptions such as exceptional circumstances. That is a very long tradition. As lawyers we must be fair to lay Members of the Committee as well. It is unfair to say that the noble Baroness, Lady Jones, has missed the point. It is very common in the parlance of sentencing law and criminal justice law to refer to minimum sentences as “mandatory minimum sentences”, subject to whatever thresholds and exceptions there are.

Bishop of Durham: That is exactly what it says in the paperwork we have.

Lord Wolfson of Tredegar: The point I am making is very important and we will get to it in another group. I absolutely accept that people use “mandatory sentence” in a common parlance way, but when we get to a later group, we will discuss what the test should be. I will not delay the Committee now, but the figures for when the minimum sentence is not actually imposed are surprising. People using the phrase “mandatory sentence” would be surprised to hear that in a third and sometimes nearly half of cases, the minimum sentence is not given. If “mandatory” does not apply in a third of cases, I question whether it is the appropriate word. Therefore, we must bear in mind that we are dealing with a minimum sentence with a provision, whether that is “exceptional” or some other test. I certainly do not seek to criticise the noble Baroness, Lady Jones, for using the shorthand.  I wanted to point out that it is a shorthand which can be misleading when one looks at the facts as to how such sentences are imposed.

Viscount Hailsham: What is the essential difference in my noble friend’s mind between exceptional and particular circumstances? Is not the truth of the matter that he wants the default position to be a custodial sentence, whereas there was greater discretion to the judge when the particular circumstances were what the law was to consider?

Lord Wolfson of Tredegar: As I say, there is a specific amendment on that point, so I will come to this in more detail then, if I may. The question is about when you depart from the minimum sentence. We are dealing here with the scope of the exception—that might be an unfortunate word, because one of the words we are using to qualify the exception is “exceptional”—and whether the exception is in circumstances which are just in the case, which I think is the gist of one of the amendments in a later group, or exceptional circumstances. I absolutely accept that one has a minimum sentence, which we can call the default, with an exception. It is always for the judge to decide, looking at the offence and the offender, whether the test is met. I will come in a moment to the words “exceptional circumstances” in particular.
What we want to do, to underline the point, is to ensure that courts depart from the minimum sentence only in exceptional circumstances. That reflects the seriousness of the offences and the risks posed to others. We believe that will create greater consistency in the statutory provisions on minimum sentences which apply to other offences. This change does not mean—

Baroness Kingsmill: Is the Minister saying therefore that it will be a mandatory sentence unless there are exceptions?

Lord Wolfson of Tredegar: Unless the exception is met, this is the sentence that will be imposed. I do not want to split hairs with the noble Baroness, but it is not mandatory in that sense. It is a minimum sentence which has to be imposed unless the conditions are met.

Baroness Kingsmill: It is awfully important in these kinds of cases that we are very clear and precise in our language. There is a difference between minimum and mandatory. I think what the Minister is actually saying is that this is a mandatory sentence unless there is an exception.

Lord Wolfson of Tredegar: It is not a mandatory sentence, because you can impose more. Let us be clear: it is a minimum sentence, which has to be imposed unless the exceptions are met. To take it outside this clause, if you have a minimum sentence of two years unless there is an exception, the first question is: is the exception met? If it is not, you have to give at least two years. You do not have to give two years; you could give two and a half years. I am not sure I am saying  anything different. Reference has been made to America. In other jurisdictions, when they say mandatory, it can be mandatory without exceptional circumstances or any other provision. I am not sure we are saying anything different. I think we are all clear about what we mean. I would prefer to use the phrase “a minimum sentence”, which is the phrase used in the Bill, unless the exception applies.

Baroness Chakrabarti: I am so sorry to elongate this, but it is important. The Minister, sitting in a Government with a massive majority, gets to rewrite the statute book, but he does not get to change terms that are well understood by lawyers and sentencers in this jurisdiction and others. He is proposing a mandatory minimum sentence subject to certain exceptions. The common parlance—perhaps not on the street, but in the profession and on the Bench—is that this is a mandatory minimum sentence. He can argue for it and say that it is good policy, but it is not helpful to the Committee, anyone outside it or anyone reading Hansard for us to suggest that this is something totally different from a mandatory minimum sentence subject to exceptional circumstances.

Lord Wolfson of Tredegar: I am really not sure that we are saying anything different. As I said, we will come in a later group to how many offenders do not get the minimum sentence with some sentences. There must come a point at which so many offenders do not get it that using the word “mandatory” to describe it is itself misleading. I suggest we are better off sticking to the terms used in the Bill, which are both accurate and appropriate.
I underline the point that the change we are proposing does not mean that all 16 and 17 year-olds will receive the minimum sentence. The courts will retain the discretion not to apply the minimum where there are exceptional circumstances which relate to either the offender or the offence and which would justify doing so.

Viscount Hailsham: That is out of the ordinary. It is a high threshold.

Lord Wolfson of Tredegar: I will come in a moment to the word “exceptional” as I think that was the point made by the noble Lord, Lord German. I have been a little diverted on the way, but we will get there.
What the courts will therefore do is to continue to take the child’s welfare needs into consideration. I also point out, of course, that the actual minimum sentence for 16 and 17 year-olds, when given, is shorter than that for over-18s when given: four months as opposed to six months. Applying minimum sentences to 16 and 17 year-olds—the older cohort of under-18s—recognises the increased maturity and development of this age group compared with younger children. Any custodial sentence is given as a last resort, but we believe that for older children who commit these particular offences, it should be mandatory for the court to consider carefully whether a custodial sentence is appropriate.

Lord Beith: I wonder if the Minister could be a little clearer. A moment ago he cited figures for the number of cases under existing law in which, apparently,  mandatory sentences are not passed because judges took the circumstances into account. When you couple his description of those figures with the phraseology that he is using now about the merits of the Bill, the impression is very clear that the Government are not happy with the judges citing exceptional circumstances in failing to deliver the kind of sentence that the Bill would impose. Am I right to understand that he is, in fact, critical of the number of exceptions that are made at present and wants fewer of these in future?

Lord Wolfson of Tredegar: I am certainly not critical of any particular sentence passed in any particular case. What I do think the figures show is that we need a test that more clearly balances the minimum sentence on the one hand with the exception on the other. We think the test of exceptional circumstances—I know that the noble Lord, Lord German, is waiting patiently—meets that test.
I turn now to Clause 104 and 105, which both relate to children who have committed murder and will therefore receive the mandatory life sentence of detention at Her Majesty’s pleasure. I hear in this regard the words read to us on behalf of the right reverend Prelate the Bishop of Derby. When giving a life sentence, the judge sets a minimum amount of time that must be spent in custody before the offender may be considered for release by the Parole Board. This is known colloquially as the tariff. Judges use starting points to determine that tariff. They can set a minimum term higher or lower than the starting point by taking into account aggravating or mitigating factors. Currently, there is a 12-year starting point for all children who commit murder.
In this Bill, we are replacing the fixed 12-year starting point for all children—what might be called the mandatory starting point—with a range of starting points that take into account the child’s age at the time of the offence and the seriousness of the murder. The age groups are to reflect the different stages of development that a child goes through and that, although both in law are children, a 10 year-old is very different from a child of 17 years and 10 months. The different levels of murder, if I can put it that way, are based on the more nuanced system used for adults, which takes the seriousness of a murder into consideration. Therefore, the twin factors of age and the seriousness of the murder are then brought together. The higher the age and the more serious the murder, the higher the starting point, and the converse is also the case.
This amendment retains a range of starting points for children based on three age groups, but it does not distinguish between the levels of seriousness of a murder. Because murder can vary in seriousness in the criminal sense, we believe it is right that the starting points should reflect this as well. We do not agree that starting points should only be based on the age of the child; they should also reflect the seriousness of the murder. Moreover, the amendment does not address the gap in starting points between older children and adults. A child of 17 years and 10 months is very close to becoming an adult. The amendment would mean that the same category of murder would have a 12-year starting point for a 17 year-old, but a 30-year starting point for an 18 year-old. However, I underline the  same point that I made about minimum sentences. The judiciary will continue to take the individual circumstances of a case into consideration and can give a minimum term higher or lower than any given starting point.
Let me address the review amendments. Children who are sentenced to detention at Her Majesty’s Pleasure are eligible to apply for a review of their minimum term. In this Bill, we are placing the minimum term review process in legislation. It allows children who are aged under 18 when sentenced to detention at Her Majesty’s Pleasure to apply for a minimum term review at the halfway point. We are restricting eligibility for further reviews to be available only to those who still aged under 18 at the time of the further review. By contrast, this amendment would allow those sentenced as an adult to apply for a review at the halfway point and continue to apply every two years. It would also allow adults who were sentenced as children, who have already had one review, to continue to apply for a review every two years. This amendment is neither necessary nor in line with case law. That is because, under the measures in the Bill, children who are sentenced to detention at Her Majesty’s Pleasure will continue to be eligible for a review at the halfway point of their minimum term.
That right has developed through case law. It recognises the unique rights of children and the fact that they develop and mature at a faster rate than adults. The review is an important part of confirming that the minimum term remains appropriate or determining if a reduction should be made. However, they should be eligible for a further review only if they are still a child at the time of that further review. This is because, as the right reverend Prelate the Bishop of Durham said on behalf of the right reverend Prelate the Bishop of Derby, children have the greatest capacity to demonstrate the significant changes to maturity and outlook that the review considers. Therefore, the opportunity for multiple reviews would be available only to younger children at the initial time of offending, as they are more likely to be under the age of 18 at the time of any further review.
Those who commit murder as a child but are sentenced as an adult have already had their age and maturity taken into consideration. Adults who commit murder are not entitled to reviews and so this Bill ensures that all offenders who are an adult at the time of sentencing are treated equally. It is important to remember that we are talking about the most serious offence, that of murder. The minimum term set by the judge takes into consideration a child’s age and maturity at the time of the offence and reflects the seriousness of the offence. That minimum period should therefore be served, except in exceptional circumstances.
That brings me to the question of the definition of exceptional circumstances, and I am grateful to the noble Lord, Lord German, for his patience. “Exceptional circumstances” is a phrase used all over the law and the criminal law. It is a matter that judges are well used to interpreting. It is a phrase in plain English. With the greatest respect to the noble Lord, it does not need, or would benefit from, a gloss from the Dispatch Box. The phrase means what it says on the tin. It is for  the individual judge in the individual case, having heard the evidence, to decide whether the exception is made out.

Lord German: Can the noble Lord tell me the difference, then, between the current words, which are “particular circumstances”, and those that the Bill is proposing—“exceptional circumstances”? What is the difference between “particular” and “exceptional” to the fraternity of judges and lawyers who do not need it written down because they all understand it? For those of us who are non-lawyers, some definition would be helpful.

Viscount Hailsham: It is a higher bar.

Lord Wolfson of Tredegar: I hear the words, “higher bar”. I do not disagree that “exceptional circumstances” is a stricter test. There is case law on that, although the name of the case has slipped my mind, but I am happy to write to the noble Lord, Lord German. I see that the noble and learned Lord, Lord Judge, who may remember, is here. I am sorry to give him exam questions. “Exceptional” is a word that has been passed and interpreted by the courts at a high level. It is proper to leave it to them to decide what “exceptional circumstances” means. However, I will write to the noble Lord with the case law, once my memory comes back to me.
I will now move to the last of the amendments to Clause 107. Children who commit the gravest crimes can be given a standard determinate sentence known as a section 250 sentence. This sentence has automatic release at the halfway point; the remainder is served on licence in the community. In this Bill, we are moving automatic release from the halfway to the two-thirds point for section 250 sentences of seven years or more which have been given for the most serious violent offences and all serious sexual offences. These are sexual offences with a maximum penalty of life, as well as manslaughter, attempted murder, soliciting murder and wounding with intent to commit grievous bodily harm.
In this regard, we are taking a different approach for children from adults in two respects. First, we are not changing the release point for children sentenced to between four and seven years, but only for those sentenced to seven years or longer. For adults, it includes the four to seven-year cohort as well. Secondly, for those children who are sentenced to seven years or longer, we are focusing on only the most serious of offences which pose a significant threat to public safety. By contrast, the amendment would retain automatic release at the halfway point, regardless of length or offence committed. For the reasons I have set out, we think that inappropriate.
I am conscious that I have said quite a bit on this, but we have had some debate on what “mandatory” means. I will finish with three points. First, the noble Baroness, Lady Massey, asked where Scotland and Wales are with the UN Convention on the Rights of the Child. There was the Supreme Court case with the Scottish legislation, but, as I am not sure exactly where the devolved Administrations are up to, I will write with the up-to-date information.
Secondly, a discrimination point was made. The Bill is fully compliant with convention rights, as my noble friend Lady Williams of Trafford has certified under Section 19(1)(a) of the Human Rights Act.
Thirdly, I will take a moment to respond to the point from the noble Lord, Lord German, about those who cross the threshold from childhood to adulthood because of delays in court. Sentencing powers are determined, consistently with what I have been saying, by the offender’s age at the time of conviction. However, sentencing guidelines make it clear that the courts should use a sentence that would have been given at the time the offence was committed as a starting point. In addition, they emphasise that sentencers should take an offender’s maturity and any other factors into account even after they turn 18. In terms of delays, youth cases have been prioritised and are regularly reviewed to ensure that they are being listed as expeditiously as possible, listing being a judicial function, especially cases that involve youths in custody and those where a child is almost 18. I hope that answers the noble Lord’s point.
For the reasons I have set out, I hope the noble Baroness will be content to withdraw her amendment.

Baroness Massey of Darwen: My Lords, I thank the Minister for his response. I did not quite realise it would end up in a dispute about the semantics. I am not a lawyer, and I think the law should be clear; I think I know the difference between “particular” and “exceptional”, but I will not go there again today. I thank noble Lords for their support for the amendments and the incisive, perceptive comments they have made.
I go back to my earlier premise that we must remember that, under the UN Convention on the Rights of the Child, children are those under 18, not 16. Everything that has been said by colleagues today expresses concern about the treatment of children in our youth justice system.
This has been a concern of the UN Committee on the Rights of the Child for years. As I said, it will be reporting back again next year on how we treat our children in the youth justice system. I hope that it finds something more acceptable than what it has in the past. By amending this Bill, we could possibly move a step forward on that issue.
The issue, for me, is that this is about children’s rights, and we should really consider those. I noted the comments of several colleagues. The noble Lord, Lord German, brought up the important issue of who is in the system and how black and minority-ethnic children, especially boys, are overrepresented in the system. We should think about that carefully.
The Government speak about levelling up in society, but I think the strategy set out in much of this Bill will do just the opposite. I will of course read carefully the comments of the Minister. I am afraid that I cannot stay for his later comments on a different group, but I will also read those carefully.
We must remember that children do not arrive fully formed at the age of 16—or any age, for that matter. We have recently been presented with research on the brains of adolescents and children which comes up with some surprising examples of how the brain does  not in fact mature until over the age of 18, certainly, and that children should be treated as children. This provides unequal effects on children.
As has been said in the debate today, children have been affected by Covid and by the developmental health issues it brought about, as well as by the effects of delays on sentencing. All in all, I do not think that this is a very happy story as far as children are concerned.
I will need to consult other colleagues who have spoken today and respond to those organisations and individuals who have been so important in giving advice on these amendments to the Bill. Youth justice is such an important issue, which I feel we must push further on Report. I will not respond to all the Minister’s points today, because that would take a long time; I may wish to have a discussion with him, if he will consent, about some of these important issues. I beg leave to withdraw the amendment.
Amendment 191 withdrawn.
Amendment 192 not moved.

Amendment 192A

Lord Marks of Henley-on-Thames: Moved by Lord Marks of Henley-on-Thames
192A: Clause 101, page 86, line 20, leave out “there are exceptional” and insert “such a sentence would be contrary to the interests of justice having regard to”Member’s explanatory statementThis amendment, along with Lord Marks’ amendment to page 86, line 23, would remove the requirement for the circumstances to be exceptional before a judge was empowered to decline to impose the minimum sentence (for offences of threatening with weapon or bladed article) and would entitle the judge to do so where in the circumstances the judge concluded that such a sentence would be contrary to the interests of justice.

Lord Marks of Henley-on-Thames: My Lords, all the amendments in this group are in my name and that of the noble Lord, Lord Pannick, whom I thank for adding his name to them. We have of course covered some of the ground covered by our amendments in the last group, but there remains, I suggest, considerable scope for developing these very important arguments.
These amendments are put down with two objectives in mind. The first and principal objective is to preserve judicial discretion in sentencing, which the Bill threatens seriously to undermine or remove. The second objective is to express our concerns that minimum sentences do nothing to improve our penal system or our sentencing practice, that they impede rather than foster reform and rehabilitation, and that they fuel sentence inflation.
Clause 101 would require a sentencing judge to impose minimum sentences for a number of offences in the absence of “exceptional circumstances” relating to the offence or the offender which would justify not imposing the minimum sentences. Clause 101(2) relates to the minimum sentences—called in the code “appropriate custodial sentences”, but minimum sentences none the less—applicable under Section 312 for, as we have heard, offences of threatening a person with an offensive weapon or a bladed or pointed weapon or article. For those offences, the code prescribes minimum sentences of a four-month detention and training order for 16 and 17 year-olds; a six-month detention  in a young offender institution for 18 to 20 year-olds; and for those aged 21 or over, six months’ imprisonment. Those sentences currently apply unless there are
“particular circumstances which … relate to the offence or to the offender”
and which “would make it unjust” to pass such a sentence “in all the circumstances.”
The new provision proposed in the Bill would change that test to require the passing of the minimum sentence unless the court concluded that there were “exceptional circumstances” which related to the offence or to the offender and justified not imposing a sentence. The significant change is the elevation of the requirement for there to be “particular circumstances” to a requirement for there to be “exceptional circumstances” before a judge is entitled to depart from the required minimum sentence. At first blush, that may not seem to be a much more onerous requirement, but it marks a very important change.
I confess that I was a little surprised that the Minister ducked the challenge from my noble friend Lord German to define the term “exceptional circumstances”. He shakes his head, but I felt he did. My understanding has always been that, in law, the word “exceptional” has a well-recognised meaning. I have no doubt I will be corrected by the noble and learned Lord, Lord Judge, if he disagrees, but “exceptional” in this or similar contexts means circumstances that are completely out of the ordinary. Judges regard themselves as bound not to find exceptional circumstances unless that high bar is met.
On the previous group, the Minister drew the distinction between minimum and mandatory sentences. He is right up to a point, but the move to a requirement for “exceptional circumstances” reduces that distinction by a considerable margin. The noble Baroness, Lady Chakrabarti, described them as “mandatory minimum sentences”. The fact is that the Government are trying to reduce the scope to depart from the minima. They are trying to reduce the number of people not getting those minimum sentences. My noble friend Lord Beith hit the point when he asked whether the Government were unhappy with the high number of departures from the minima on the present phraseology, which I suggest shows the fallacy in the Minister relying on the number of departures there are at present.
The noble Viscount, Lord Hailsham, was right in describing this as a proposal for a default sentence. In practical terms, a judge might well believe that the particular circumstances of the offence and/or the offender—under the current phraseology—were such that the justice of the case required a custodial sentence of less than the minimum level or a non-custodial sentence. “Particular” in that context bears its ordinary English meaning. It refers to the circumstances that apply to the offence in question—that particular offence —or to that individual offender. However, the use of the word “exceptional” is calculated to require the sentencing judge, in the majority of cases, to pass the minimum sentence even if the judge took the view that the minimum sentence might cause injustice. That is the weakness of these provisions.
Clause 101(3) would impose a minimum sentence of seven years for a third class A drug-trafficking offence, subject to exactly the same test. Clause 101(4) would impose a minimum sentence of three years for a  third offence of domestic burglary—again, subject to the same test. Clause 101(5) would impose the same minimum sentences for a repeat offence of carrying an offensive weapon or possessing a bladed or pointed article in a public place or in educational premises as those which apply for any offence of the threatening offences to which subsection (2) refers—again, on the same conditions.
It will be clear from what I have said so far that these minimum sentence provisions represent a serious reduction in the discretionary powers of sentencing judges to exercise leniency when the circumstances require that. That fetter on judicial discretion we regard as entirely unwelcome. The Minister used the phrase “it is always for the judge to decide”. Under the new regime that will be inaccurate, and we believe that sentencing law should not impose on judges a requirement that they pass sentences that they themselves regard as unjust and would be unwilling to pass. That is bad for judges, it is bad for the criminal justice system, and I venture to suggest that it is bad for public confidence.
Our amendments would involve the removal of the requirement for there to be “exceptional circumstances” before a judge could depart from the proposed minimum sentences. Instead, the judge would need to be satisfied that
“such a sentence would be contrary to the interests of justice, having regard to circumstances which … relate to the offence or to the offender”,
and which justified the judges declining to impose such a sentence. We believe that the law and Parliament should learn to trust the judges. One regrettable thread running through this part of the Bill is the withdrawal of that trust, represented by a reduction in the ambit of judicial discretion.
Our second point is that another regrettable thread running through this part of the Bill is an apparently strongly held view on the part of this Government that longer sentences are better sentences. We believe that view is profoundly misplaced. I agree with many of the points made by the noble Baroness, Lady Jones of Moulsecoomb, on both these issues. Without going into detail because these issues have been canvassed in this House and elsewhere on many occasions, I say that the vast weight of evidence is to the contrary. It does not point to the proposition that longer sentences are better sentences.
We share the profound concern expressed by the noble Lord, Lord Ponsonby of Shulbrede, about sentence inflation, so often expressed by many Members of the House experienced in the criminal justice system. We imprison too many people for too long. Our prisons are overcrowded and underfunded and the record of prison in achieving the reform and rehabilitation of offenders is extremely bad. I reiterate what the noble Baroness, Lady Massey, said, to the effect that long sentences impede rehabilitation and reform, and that goes for adults as well as for young people and children. I beg to move.

Lord Judge: My Lords, I sometimes wonder when I read statutes that make provision for sentencing whether those who are responsible for the ideas behind  them or those responsible within the department have any idea how difficult it is to pass a sentence. It is easy in a debate like this to talk about two years, three years, seven years, probation or whatever it might be, but it is not like that in the real world. When we have to consider minimum sentences—and I love the semantics about whether we are talking about an obligatory minimum sentence or mandatory sentence subject to exceptions—the ultimate requirement for a sentencing judge is to pass a just sentence. That is why I support the amendment in the name of the noble Lord, Lord Marks.
I am sorry that I am going to take time about this, but there are perhaps four ingredients of a sentence that we now have to consider. One is societal attitude to the crime. Judges get that from what Parliament says that the maximum sentence must be. Dangerous driving causing death, in my lifetime, has gone from two years to five years, 10 years, 14 years and now life. That is Parliament reflecting the seriousness with which society, reflected by Parliament, sees the crime. That always works in the sentencing process. On the rare occasions when a maximum sentence is reduced, as it was with theft, from seven years to five, that too is reflected in the sentencing requirements. However—and although I am used to it, it is no less pernicious—there is the minimum-term idea. Parliament has willed it to be so, and a judge has to be loyal to the Act of Parliament and the oath that he has taken. There it is: forget the semantics, but the starting point is X, and you can move from X only if circumstances permit it, which are now being elevated into “exceptional”.
But that is only the starting point. There is the actual crime itself. Is it a very bad case of its kind or not? This is of particular importance when using “exceptional”. There are many cases where more than one defendant is involved, and sometimes the sentencing judge has in front of him a gang. One member of the gang is a gullible gopher, the person chosen because he is a bit thick, who goes along with it. Do we start with him, with the same minimum sentence as all the others in the same gang? Yes, says this provision, unless it is exceptional. Then we have to remember the victim—the impact on the victim, how it has affected him or her, how long the awful or relatively minor effects will affect that person and how strong, weak, troubled or so on the victim may be. Then there is the defendant. Every single defendant is an individual. On one hand you have the gopher, while on the other you have the sophisticated criminal who does these crimes as a matter of ordinary employment.
My goodness, I could give noble Lords a lecture on this issue, I am not going to because I do not lecture the House, but I am looking at the Minister and members of his department when I use that word. All those ingredients go into making a sentencing decision, and the sentencing judge struggles to balance all of them, because there is a huge conflict on every occasion. If you introduce a minimum term, you have changed the nature of the exercise, which is not to decide in the light of all the ingredients of the defendant, the victim and the crime itself, because you have added a minimum term. The possibility that a judge should be required to pass a sentence that he or she regards as an unjust sentence on a particular individual in a particular case  for a particular crime is really rather—I must moderate my language—appalling. A judge should never have to pass a sentence that he or she conscientiously regards as unjust. That is what is wrong with this provision.

Viscount Hailsham: I support the amendment proposed by the noble Lord, Lord Marks, for very much the same reasons advanced by the noble and learned Lord, Lord Judge. I very much favour the preservation of a judicial discretion; it is absolutely essential.
I worry very much indeed about sentencing inflation. When I was at the Home Office working as a Parliamentary Under-Secretary at the back end of the 1980s, I was a Prisons Minister. At that time, the prison population was around 40,000; it has now doubled—it is well into the 80,000s. Are the streets any safer? Does the community feel safer? The answer to that is manifestly that no, it does not.
The noble Lord, Lord Marks, is utterly right when he says that longer sentences mean more people in custody. What is the consequence of that? If you pack people into prison, there is overcrowding and the chances for rehabilitation and retraining are greatly diminished. I know that from my personal experience: for three years or so, I was on the monitoring board of a local prison near me in Lincolnshire—actually, it was just over the border—and the chances of prisoners getting proper courses were very small, so the chances of rehabilitation were thereby much diminished.
The purpose of this clause is to ensure that, in the generality of cases, a prison sentence is the starting point. That is what is intended by using the phrase “exceptional circumstances” as the proviso. That is to say that it will be disapplied in a small minority of cases. The noble and learned Lord, Lord Judge, made a very important point that we need to keep a grip on: exceptional circumstances may not exist, but the sentence could be unjust. So the noble and learned Lord is in fact saying to this Committee—and he is absolutely right—that the impact of the Government’s proposals is to drive the judiciary in particular cases to impose a sentence that they know to be unjust, because they cannot find exceptional circumstances. I find that wholly deplorable.
The amendment from the noble Lord, Lord Marks, enlarges judicial discretion to make it more in accordance with the principles of natural justice. I very much favour that, and I hope that the Committee will do so as well.

Lord Thomas of Cwmgiedd: My Lords, in the light of what my predecessor as Lord Chief Justice, the noble and learned Lord, Lord Judge, has said, I can be very brief.
First, I wholeheartedly agree with him. Secondly, I do not think that we should beat about the bush at all about the change to the word “exceptional”. Any lawyer knows that the intention is to raise the bar significantly. You use that word only when you want to try to minimise the discretion or ambit of when it is to happen. I hope that the Minister will accept the clear intention of the change and answer the question posed in the earlier debate by the noble Lord, Lord German, about the difference. There is a clear and obvious difference.
Thirdly, having had a little less time as a judge and coming to the job a bit later, I can see an argument, which one has to accept, for saying that, by setting a minimum term, Parliament is giving an indication of what it thinks is appropriate. Perhaps that was not the right road to go down, but we have gone down it. But where this Government are wholly wrong—I do not think that we should mince our words about that—is in saying that a judge should impose a sentence that is not just. In refusing this amendment, the Government are saying, “We don’t care if injustice results: you must look at the circumstances, and if they are not exceptional” —a high bar—“you must impose an unjust sentence”. Have we really sunk so low as to require our judges not to do justice?

Lord Ponsonby of Shulbrede: My Lords, this has been an interesting debate. I agree with the points that the noble Lord, Lord Marks, has made, but I want to give a different perspective that partly undermines the argument put by him and all the other noble, and noble and learned, Lords who have spoken. The noble and learned Lord, Lord Judge, said that, ultimately, it is for judges to pass a sentence that is just. He pinned his argument on that single point.
We talked about youths in the previous group. For youth justice, the overarching purpose when sentencing is to reduce reoffending. That purpose supersedes the overall position of needing to be just in the sentence. That is why there is a minimum sentence in youth courts of four months. The reason is that, when you go to youth offender institutions or things like that, you are invariably told by the prison offers and teachers dealing with the young people that they need to be there for a duration of time to get their education. That is the justification for having a minimum sentence of four months in youth cases.
So, while I agree with the points that have been made, I put forward that particular exception where I agree with the appropriateness of that minimum sentence. Of course I agree with giving judges and magistrates discretion, so they are not tied down by minimum sentences, but I wanted to give that example of where I think a minimum sentence is appropriate. Having said that, I support the amendments put forward by the noble Lord, Lord Marks.

Lord Wolfson of Tredegar: My Lords, these amendments seek to ensure that the courts depart from imposing a minimum sentence, to use the words of the amendment, only where it would be
“contrary to the interests of justice”
to do so, “having regard”—and then it refers to the particular requirements in the Bill on the offender and on offending. “Interests of justice” is not defined. I do not complain about that, because the phrase is used elsewhere and the courts know what it means. I do not want to go over old ground.
It is already the case that a court has the discretion not to impose the minimum sentence where there are particular circumstances relating to the offender, the nature of the offence or, in the case of repeat offending,  the nature of the previous offence that would make it unjust to do so. I underline the point that whether that exception, however phrased, is met is for the judge to decide, based on the particular facts of the case. It is for Parliament to set the minimum sentence, if it wants to, and to set the “exceptional” provision—whether that is exceptional circumstances or however else it is defined. It is then for the judge to apply what Parliament has said.
As I said on the previous group, concerns have certainly been raised that offenders too often receive sentences below the minimum term. That both fails to provide an appropriate level of punishment that reflects the severity of the offence and undermines any sensible use of the word “mandatory” in this context. Let me give a couple of examples. Among adult offenders in 2020, at least—and I will explain my “at least” in a moment—50% received a sentence below the minimum term for third-strike domestic burglary. I said “at least” because the figures do not indicate whether these cases include early guilty pleas, for which they could get a reduction of up to 20%. Even allowing for that, at least 50% received a sentence below the minimum term. Of adults convicted of repeat possession of a weapon or bladed article, at least 21%—over a fifth—received a sentence below the minimum term.
I heard what the noble and learned Lord, Lord Thomas, said and I am not going to beat about the bush, either. I am trying to be clear. There may well be a difference of opinion around the Committee, but at least let us identify it clearly. With this provision, we seek to ensure that courts depart from the minimum sentence only in exceptional circumstances. Those are clear words, and they mean what they say.
We believe that the test of exceptional circumstances is both suitable and important. Not only does it help to address problems that have been escalating in our communities for some years, especially with regard to knife crime, but it will create greater consistency in the statutory provisions on minimum sentences. The change is therefore intended to reduce the circumstances in which the court will depart from the minimum term, ensuring that this important safeguard is used only where the court considers that there are exceptional circumstances, pertaining to the offender or the offence, that would make the minimum sentence unjust.
The changes align the criteria used for these offences with the criteria for passing a sentence below the minimum term in relation to offences involving firearms, where the proviso of exceptional circumstances is already in the law. However, I underline that the judicial discretion for the court to fully consider the facts of the case before it and decide on the appropriate sentence in line with the statutory framework is therefore retained.
I listened carefully, as I know the noble and learned Lord would expect me to, to the noble and learned Lord, Lord Judge. I think we may stray into almost philosophical areas, albeit very important ones, as to what a sentencer ought to do and perhaps even what we mean by “unjust” and where justice lies.
Parliament sets out the statutory framework. If the Bill is passed, Parliament will say that the minimum sentence is X years and that the proviso is exceptional  circumstances. It is then for the judge to apply what Parliament has set out. That is the way our system operates. We can have an interesting debate about whether, if a judge does that, the judge can be doing something that is “unjust”. I fully understand where the noble and learned Lord is coming from, looking at “unjust” in a broader sense, but there is a basic justice in Parliament, which is ultimately where power resides, setting out what the minimum sentence and the exception should be and then leaving it for the judge to apply that exception on the facts of the case.
I heard very clearly the point made by my noble friend Lord Hailsham about whether longer sentences actually help. Again, that takes us into a whole different area. I mean no disrespect by not replying to him at length but we believe the sentences here are appropriate and suitable.
When the noble and learned Lord, Lord Thomas, concluded by saying, “Are we not to require our judges to do justice?”, I do not know whether he was intentionally paraphrasing the famous argument of Abraham to the Almighty. When the Almighty is going to destroy Sodom and Gomorrah even though there are some righteous people there, Abraham says to the Almighty, “Will the judge of all the earth not do justice?” I hear very strongly that the ultimate requirement is to do justice, but I emphasise that in our system we start with the parliamentary legislation. That is why we collectively, here and in the other place, bear such a heavy burden. It is for us to set out the statutory framework and then for our judges and courts to apply that framework. That is ultimately the way, I suggest, that justice is done in our system.
I do not want to lecture the Committee any further on jurisprudential matters. I invite the noble Lord to withdraw the amendment.

Lord Marks of Henley-on-Thames: My Lords, I am grateful for the speeches that we have heard in this interesting debate, particularly by those who have the most sentencing experience, the noble and learned Lords, Lord Judge and Lord Thomas. I am also grateful to the noble Viscount, Lord Hailsham, and to the noble Lord, Lord Ponsonby, for his indication of the Labour Party’s support.
While I will withdraw the amendment at this stage, I will return to it on Report. My concern is that the Minister, and I am grateful for the care that he gave to his response, failed to appreciate quite how loyal judges are to the law. Where the law requires a judge to find that exceptional circumstances exist before making a departure from the minimum sentence, he will do so loyally.
The point that both noble and learned Lords made is that it is simply wrong for the law to require judges, where they might have found that the circumstances of an offence or an offender dictate that the just sentence is less than the minimum, to be in the position that they have to say, “I cannot here find that the circumstances are exceptional—that is, completely out of the ordinary—and although I believe that the sentence I am constrained to pass is unjust in the sense that it is the wrong sentence, I nevertheless have to do it.” That is the result of the loyalty judges feel to the law—the noble and learned Lord, Lord Judge, mentioned the judicial  oath—and is a weakness of this proposed provision, which puts political dogma above the need to do justice. Although I will withdraw my amendment now, I hope that, given the speeches we have heard, in the next few weeks or months, before Report—depending on when that is—we can talk to the Minister, take this matter further, and see if we can get some movement. Saying that, I beg leave to withdraw the amendment.
Amendment 192A withdrawn.
Amendments 192B to 194B not moved.
Clause 101 agreed.

Amendment 195

Lord Falconer of Thoroton: Moved by Lord Falconer of Thoroton
195: After Clause 101, insert the following new Clause—“Minimum sentence for an offence under section 1 of the Sexual Offences Act 2003(1) This section applies where—(a) an individual is convicted of an offence under section 1 of the Sexual Offences Act 2003, and(b) the offence was committed after the commencement of this section and at a time when the individual was aged 18 or over.(2) The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum term (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify it not doing so.(3) In this section “appropriate custodial sentence (or order for detention)” means—(a) in the case of an offender who is aged 18 or over when convicted, a sentence of imprisonment, and(b) in the case of an offender who is aged under 18 at that time, a sentence of detention under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000. (4) In this section “the required minimum term” means seven years.”Member’s explanatory statementThis amendment would ensure those found guilty of abduction, sexual assault, and murder would receive a Whole Life Order as a starting sentence.

Lord Falconer of Thoroton: My Lords, this group contains three amendments in my name, and a Clause 103 stand part debate in the names of my noble friend Lady Massey and the noble and right reverend Prelate the Bishop of Derby, neither of whom appears to be here at the moment. The amendments fall into two categories, but I make no complaint about them being grouped together. Amendments 195, 196 and 197 are based on the deep concern on this side of the Committee that the Government have not done enough in the Bill to mark their animosity to violence against women and girls.
Amendment 195 proposes a minimum sentence for an offence of rape under Section 1 of the Sexual Offences Act 2003. That minimum term—of seven years—applies unless the court is of the opinion that there are exceptional circumstances relating to the offence or the offender which justify it not doing so. I propose that minimum term for rape without one iota of apology.
The framework for sentencing by the courts has to be set by Parliament. The way Parliament does this—as the two former Lord Chief Justices made clear—is by setting a maximum sentence, and the courts then reflect on what they conceive to be the justice of the case, as determined by the maximum. In exceptional cases—I use that word advisedly—it is appropriate for there to be minimum sentences as well. If there is a minimum sentence, the judge’s discretion is removed, but that is because Parliament is saying that particular offence merits a minimum sentence except in exceptional cases.
I strongly agree with the proposition that one should keep those sentences to the minimum. I also strongly agree with the noble and learned Lord, Lord Thomas, that, where Parliament says “exceptional circumstances”, for all the impressive sophistry of the noble Lord, Lord Wolfson, it is definitely saying, “We want the norm to be whatever the minimum is, and as few cases as possible should not be in the norm”. There is nothing wrong with Parliament doing that. Rape, in our view, is one of those cases.
I have the greatest respect for the judges—indeed, I should say as a declaration of interest, I am married to a judge—but I disagree strongly with the proposition that the effect of the amendment is to force judges to pass “unjust” sentences. Was the position after the 2003 Act was passed, which in effect increased the starting point for murder and the minimum term, that judges begin to pass unjust sentences? Of course not; what the judges were then doing was reflecting what Parliament had determined the framework was in relation to those sentences.
Without apology, I therefore say that there should be a minimum sentence for rape. That sentence should be departed from only in exceptional circumstances. It is important that Parliament sends out that message.
The second amendment, Amendment 196, says that where the name of a complainant in serious sexual cases is revealed by somebody, instead of it only being a fine that can be the sentence, they should be susceptible to a maximum of two years in prison. For very many people, it being made public that they have been the victim of a sexual assault is something of enormous anxiety. Parliament should send out the signal that where people reveal names, they could have a sentence of as high as two years—I am not saying in every case or as a minimum, but I am saying that Parliament should mark the seriousness of this and the fact that people can be put under enormous pressure by the threat of publicity.
The third amendment that we propose would require, in relation to a murder case which involves the abduction and sexual assault of a person, and then their murder, that the starting point for a crime as heinous as that should be a whole life term. Of course, applying the 2003 Act, the judge would need to take into account other factors, but a whole life term should be the starting point. There should not have been, as there was in a recent case, a debate about whether a whole life term could be imposed. We think it important that this Bill addresses the fact that violence against women and girls is not adequately dealt with by the criminal  justice system at the moment. We are concerned that it does not do that. I put forward those three amendments without an iota of an apology.
The fourth thing in the group is whether Clause 103 should stand part. Clause 103 would make it possible for judges to impose a whole life order on offenders aged 18 to 20. We have touched on this in previous groups. We think a whole life term should be imposed only on somebody who is 21 or over—somebody unequivocally an adult—for all the reasons that have been debated before. We have very considerable doubts about that clause. I was going to say that I would wait for the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby to talk about it, but I will be waiting for a very long time, so I have made clear my position in relation to it.

Viscount Hailsham: My Lords, I have a feeling I am going to be in a minority in this Committee. As much as I like and admire the noble and learned Lord who has just spoken, I disagree with at least two of his amendments. I disagree with Amendment 195 on the minimum sentence for rape, partly because of the general point that I have made about judicial discretion already, which I am not going to repeat, and partly because—I draw now on my own experience as a criminal barrister; perhaps not a very distinguished one, but I was a genuine lawyer for quite a long time —rape is a broad spectrum of offence, from ones which one can comprehend to the truly awful. There is a spectrum here, and it is wrong to fetter the judicial discretion to the point envisaged by this amendment.
The other amendment I do not agree with would make the murder cases of the class described by the noble and learned Lord in Amendment 197 a whole life offence. I personally shrink from whole life sentences if they are mandatory. There are many cases where they are proper, but I would leave it to the judge. I very much dislike the concept of sending lots of people to mandatory whole life sentences with no prospect of rehabilitation.

Lord Falconer of Thoroton: The noble Viscount may be assuaged by the fact that what I am talking about is the starting point. Therefore, it is not a mandatory whole life term, it is a mandatory life sentence, and it is for the judge to indicate what the position is. The effect of my amendment is to say that the starting point is a whole life term.

Viscount Hailsham: We have been here before in previous debates. The effect is to make it mandatory unless there are some very powerful arguments against. If the noble and learned Lord will forgive me, having read his Amendment 197, I recognise that in many cases falling within that classification a whole life sentence would be appropriate: abduction, yes, murder, of course, but sexual assault? One needs to keep in mind that is a fairly broad offence from the relatively trivial to the very serious. I am not at all happy about including that as a triggering element which makes the whole life sentence the starting point. But I know I am in the minority on this point and the Committee will doubtless take a different view.

Lord Marks of Henley-on-Thames: My Lords, we have heard which amendments are in this slightly disparate group. On Amendment 195, I am in agreement with the noble Viscount, Lord Hailsham, and in disagreement with the noble and learned Lord, Lord Falconer, I am afraid, because it would require the courts to pass a minimum sentence of seven years for rape in the absence of exceptional circumstances. I fully accept that this amendment is motivated by a determination to respond strongly to the completely horrible offence of rape, and by a desire to be seen to be determined to tackle and reduce it by bringing offenders to justice and dealing with them with the full force of the criminal justice system through long sentences of imprisonment. Nevertheless, I cannot support the amendment.
On these Benches, we will take lessons from no one on how serious a crime rape is. Members on these Benches have spoken repeatedly of the need to increase the rates of reporting rape, the approach to investigating rape, ways of increasing rates of prosecutions and the rate of successful prosecutions for rape, and ensuring that courts, juries and the public—young and old—are fully aware of the meaning of consent. But we do not believe that a minimum seven-year sentence for rape will increase the number of victims prepared to report offences—particularly in cases where the assailant is known or related to them—or reduce the difficulty for the police in investigating rape, securing the co-operation of parties close to the case, securing witness statements or getting witnesses to give evidence in court. Nor do we believe that such a sentence would make it easier to secure convictions from juries, particularly in cases they might regard as borderline, against the background of appallingly low conviction rates.
We have heard many times about the background of failure to bring rapists to justice. In the year to March 2020, nearly 59,000 cases of rape were recorded by police in England and Wales. Of those, there were only 21,000-odd prosecutions and an appallingly low 1,400-odd convictions. We have also heard many times that in 57% of cases investigated by the police in that year, the victims withdrew their support for the prosecution. There is no evidence at all relied upon by the noble and learned Lord, Lord Falconer—or, I suggest, in existence—that minimum sentences of seven years, or of any figure, would improve that position.
Every lawyer, investigator or judge who has ever had anything to do with criminal courts knows the extent to which one case of rape differs from another. The noble Viscount, Lord Hailsham, is right about that. Although every case represents an egregious abuse, a standard minimum sentence cannot be justified. That brings me back to the points I made in the previous group about the importance of judicial discretion and the inappropriateness of a test requiring a judge to find exceptional circumstances before being permitted to pass less than the minimum sentence.
There is a minor point as well about the drafting of the amendment: it is unclear as to the age of the offender. Proposed new subsection (1)(a) applies the clause to offenders “aged 18 or over” at the date of the offence, while proposed new subsection (3)(a) applies to an offender under 18 at the date of conviction. There is an internal inconsistency which the noble and learned Lord may wish to consider.
Rape is a scourge. We must address it, reduce it and bring offenders to justice, as well as change the culture in our society that tolerates it and, as the noble and learned Lord said, does not control the appalling epidemic of violence against women and girls. But minimum sentences will do none of that.
Amendment 196 seeks to increase the sentence for naming a complainant. The noble and learned Lord is absolutely right that this offence can do great harm by removing anonymity; it can cause considerable distress and often psychological damage as well. Increasing it to a two-year maximum on indictment or 12 months on summary conviction is a sensible change to the law, which we support.
Amendment 197 would add
“the abduction, sexual assault, and murder of a person”
to the offences in Schedule 21 to the Sentencing Code for which a whole-life sentence is a starting point. I take it to mean that the whole-life sentence would be a starting point if all three elements were present: the abduction, the sexual assault and the murder.

Lord Falconer of Thoroton: That is correct.

Lord Marks of Henley-on-Thames: The only reason I make that point is that there was a misunderstanding—not inherent in the noble Viscount’s speech, but that might have arisen from his speech—where he talked of sexual assault as being a very varied offence; of course it is, but here it is combined with abduction and murder.
I think the starting point argument made by the noble and learned Lord is valid because the starting point applies on the statute if the court considers that the seriousness of the offence, or a combination of the offence and one or more offences associated with it, is exceptionally high. It is only a starting point: it does not mean that judicial discretion is removed or even significantly fettered if particular circumstances applied to make that an inappropriate or unjust sentence. I see no reason why that should not be added to the list, which we already have, of heinous offences for which a whole-life order is a starting point. But I fully agree with the noble and learned Lord that we need to keep whole-life orders to a very restricted class of cases because they are sentences without hope.
Finally, the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby—whose position was eloquently expressed by the right reverend Prelate the Bishop of Durham in the earlier group—oppose Clause 103 because new Section 321(3B) of the code would permit whole-life orders for those aged 18 to 20. We agree, for all the reasons they gave, and the reason that the noble and learned Lord, Lord Falconer, gave, that that is inappropriate. Whole-life orders should not be imposed in such cases.

Lord Wolfson of Tredegar: My Lords, this is obviously an important set of amendments. I thank all those who spoke on the arguments put forward. We agree across the Committee that sexual violence is a devastating crime that can have lifelong impacts on  victims and survivors. The noble Lord, Lord Marks of Henley-on Thames, used the word, “scourge”. I do not disagree with that. He was also right to say that a change in culture is part of the solution here but also that these crimes have to be punished with sentences that match the severity of the offence.
As the noble and learned Lord, Lord Falconer, said, the group of amendments encompasses a number of such crimes. Let me take each one in turn. I will start with the Amendment 195, which would require the court to impose a minimum custodial sentence of at least seven years for a rape offence committed under Section 1 of the Sexual Offences Act 2003 unless, as stated in subsection (2), there are exceptional circumstances that justify not doing so. I respectfully agree with the noble and learned Lord that there is an important point here. He was making, it is fair to say, substantially the same point that I was making to the noble and learned Lord, Lord Judge, about the roles of Parliament and the courts. Just as the noble and learned Lord, Lord Falconer, has nothing but respect for the courts and judges, so do I. I should also say that my wife is a judge but she does not come anywhere near to sentencing anybody, so perhaps I do not have to make that declaration.
We agree on the principle that there are some cases in which it is right for Parliament to set out a minimum sentence with an exception, and other cases where it is appropriate to have greater judicial discretion. The real question is how we respond to each case, bearing in mind the scope of the sentences available to the sentencing judge.
Against that background, we have to remember that the maximum penalty for rape is life imprisonment. Quite rightly, rape offenders already receive significant sentences. I remind the Committee that in 2020, the average—I underline “average”—custodial sentence given to adult offenders for a Section 1 rape offence, where the victim was 13 or over, was almost 10 years. That represents an increase of almost 15% over the past decade. Also in 2020, over two-thirds of those offenders received a custodial sentence of over seven years.
Also, in certain circumstances, where offenders are convicted of a repeat serious sexual offence, including rape, the law already provides for a minimum sentence of life imprisonment. I should underline that the original offence, when we are talking about the repeat offence category, may not necessarily have been rape but one of a number of serious sexual and violent offences. In addition, in this Bill, and through legislation in the past year, the Government are ensuring that rape offenders sentenced to over four years must spend two-thirds of their sentence in prison, as opposed to being released at the halfway point.
However, as the noble and learned Lord, Lord Falconer, recognised in his Second Reading speech, it is important that we maintain judicial discretion for the court to consider the facts of the case before it and decide on the appropriate sentence. Perhaps I can provide some support on this point —or perhaps the noble Viscount may give me some support. It is important that, given the complex nature of this offence and the wide range of circumstances the court may need to take into  account, we maintain that role for judicial discretion. We may both lack the appellation “learned” but I hope that that does not detract from the strength of the point we are making.
Although the sentence lengths for rape have increased, we have a serious problem. We have long recognised that the decline in the number of effective trials for rape and serious sexual offences is a cause for serious concern. I have said that from the Dispatch Box before. Let me take the opportunity to mention briefly some of the wider action we are therefore taking to support rape victims and improve the way rape cases are handled by all criminal justice partners.
We published the End-to-End rape review on 18 June. This sets out our ambitious plans to improve numbers of rape cases being referred by the police, charged by the Crown Prosecution Service and reaching the court. On 21 July, we published the cross-government Tackling Violence Against Women and Girls Strategy, to help better target perpetrators and support victims of crimes which disproportionately affect women and girls. As to sentencing, the maximum penalty for rape is life imprisonment, and it is already the case that the courts impose significant sentences. For the reasons that I have set out, we believe it is proper that the courts retain discretion to ensure that they can impose the appropriate sentence based on the facts of the individual case.
Turning now to Amendment 197 on the abduction, sexual assault and murder of a person, I read it as the noble and learned Lord intended, that it is all three. The amendment would expand the circumstances where a whole-life order would be the starting point to include cases of murder involving the abduction and sexual assault of a single person. While this Government obviously greatly sympathise and understand the concerns that underpin this amendment, I respectfully disagree with what is proposed. All those convicted of murder already receive a mandatory life sentence. For murders involving sexual or sadistic conduct, the starting point for the minimum term in prison is 30 years. Judges are able to increase or decrease a minimum term from this starting point according to the circumstances and relevant aggravating or sometimes mitigating factors. In addition, and as was demonstrated by the sentencing of Wayne Couzens for the horrific abduction, assault and murder of Sarah Everard, there is also an existing discretion to impose a whole- life order if the seriousness of the individual case is exceptionally high.
We are committed to ensuring that serious sexual and violent offenders serve sentences that reflect the severity of their crime. However, I believe that our current sentencing framework, a crucial component of which is judicial discretion, responds correctly at present to these horrendous cases. The courts can, and indeed do, impose extremely robust sentences where appropriate that fully reflect the gravity of this offending and the appalling—often lifelong—harm that it causes.
As I am on the topic of whole-life orders, I will go slightly out of turn chronologically to address the notice given by the noble Baroness, Lady Massey, and the right reverend Prelate the Bishop of Derby that they oppose Clause 103 standing part of the Bill. Clause 103  makes it possible for people aged 18 to 20 to receive a whole-life order where the crime committed is extremely serious. Clause 103 has to be read together with Clause 102, which expands the range of circumstances where a whole-life order must be the starting point to include the premeditated murder of a child. The current position is that whole-life orders can be imposed only on offenders aged 21 and over. This acknowledges the utmost seriousness of this punishment and its overwhelming effect on an offender’s future. We recognise, however, that there may be some rare cases where it may be appropriate to impose a whole-life order on offenders aged 18 to 20. We propose, therefore, to give judges the discretion to impose a whole-life order on an offender aged 18 or over, but under 21, in those cases.
We have set out an important clarification or criterion for when that sentence would be available. Clause 103(2)(b)(3C) makes it clear that the sentence will be warranted for offenders in the 18 to 20 year-old cohort only where the crime was extremely serious even by the standards of the crimes which would normally attract a whole-life order. We anticipate that this discretion would be exercised rarely. The expectation is still very much that offenders aged under 21 would not receive a whole-life order, but the change will allow judges to impose these sentences for these younger offenders, who are of course still adults, where that is necessary.
Let me turn finally to Amendment 196 which the noble and learned Lord, Lord Falconer, set out. As was stated in the other place, we are sympathetic to the objective of this amendment. The unlawful naming of people whose identity is protected by law ought to be appropriately punished. It is a crime which can have serious consequences and cause serious upset, concern and more.
However, with respect, our view is that the amendment does not go far enough. It is limited to breaches of Section 5 of the Sexual Offences (Amendment) Act 1992. That Act applies where an allegation of a sexual offence is made, and it imposes an automatic prohibition on publishing any material likely to lead to the identification of the complainant. It also covers alleged victims of human trafficking. This amendment would cover those types of victims, but there are many others whose identity is also legally protected, where the existing penalty for breach would be unaffected.
Sometimes the protection is automatic, for example for victims of female genital mutilation and forced marriage, where the breach offence is the same as that in the 1992 Act, or victims, witnesses and defendants under the age of 18 in youth court proceedings, something which I know the noble Lord, Lord Ponsonby, will be familiar with. In addition, reporting restrictions can be imposed at the discretion of a court, for example in relation to underage participants in a Crown Court trial or vulnerable adult witnesses. Since one reason for imposing these discretionary restrictions may be to protect the subject from injury, one should not assume that the discretionary imposition of restrictions is any less serious than the automatic ones.
Contempt of court may overlap with specific breach offences in circumstances where there is a potential impact on the justice process; that would have a two-year maximum. Therefore, we believe there is a strong case for examining this area of law as a whole, rather than  amending legislation piecemeal. My right honourable and learned friend the Attorney-General has invited the Law Commission to undertake a review of the law of contempt of court, with particular reference to the interface between that and the criminal law, including the specific breach offences under discussion today. If the Law Commission takes on that task, it would provide a sound basis to look at this area properly and provide some real improvements in the protection the law offers to participants in the criminal justice process.
For the reasons I have set out, I invite the noble and learned Lord to withdraw his amendment and invite the Committee to allow Clause 103 to stand part of the Bill.

Lord Falconer of Thoroton: I am obliged to everybody who took part in the debate. There was widespread support around the Committee for the increase in the penalties for the naming of an anonymous complainant. I thought the speech from the noble Lord, Lord Wolfson, was cruel, because it appeared to support it and then talked about the Law Commission. That is years away, so I think we will come back to this on Report. If the Minister would be willing to help me, we could expand the range if he thinks that is appropriate.
In relation to the question of a minimum sentence for rape, as far as the Government are concerned, there is already a minimum sentence of seven years for third Class A drug trafficking offences, a minimum of three years for third domestic burglary and a minimum sentence for offences of threatening with weapons or bladed articles. I am broadly in agreement with the proposition that minimum sentences should be exceptional, but if they are to apply to any case, rape must be the appropriate case.
The third point is that I find it quite out of kilter with what reasonable people would think that, if you abduct somebody, sexually assault them and then murder them, as Wayne Couzens did, the starting point for the court should not be a mandatory whole-life term. Obviously, I will beg leave to withdraw my amendment today, but we will come back to some of these issues later.
Amendment 195 withdrawn.
Amendment 196 not moved.

Amendment 196A

Lord Falconer of Thoroton: Moved by Lord Falconer of Thoroton
196A: After Clause 101, insert the following new Clause—“Duty to inform victims and families of the Unduly Lenient Sentencing Scheme (1) The Criminal Justice Act 1988 is amended as follows.(2) After section 36, insert—“36A Duty to inform victims and families of the Unduly Lenient Sentencing Scheme The Secretary of State must nominate a Government Department (“relevant body”) to inform victims and their families of their rights under the Unduly Lenient Sentencing Scheme, and such information provided must include the type of sentence and the time limit for application, and advise that applications must be made to the Attorney General.””

Lord Falconer of Thoroton: This is about a completely new topic that we have not addressed before, which is the unduly lenient sentence scheme. The scheme allows the Attorney-General to refer to the Court of Appeal a sentence which he or she regards as being unduly lenient. Only the Attorney-General can do it, there is a 28-day period for referral from the date at which the judge has passed the sentence which is impugned by the unduly lenient sentence application, and it applies only to particular identified serious crimes. From time to time, there is a review of which crimes to which it refers, and the crimes have been changed from time to time—always increased, not reduced. It does not apply to the crimes to which it applies if they are tried in the youth court.
One of the great campaigners for change in relation to this is Tracey Hanson, whose son Josh was brutally stabbed to death in October 2015. The person who committed the murder absconded in a private plane, and many years went by before he was finally arrested and charged, convicted of murder and given a life sentence with a minimum sentence of 26 years. Josh’s mother took the view, completely understandably, that this was an unduly lenient sentence. She knew nothing about the unduly lenient sentence scheme until she was told about it on the 28th day. She got in touch with the Attorney-General’s chambers, who said that it was out of office hours and too late to make an application. It would have had to be the Attorney-General who made it, not Tracy Hanson, so the opportunity was completely lost.
Amendment 196A proposes that the Secretary of State for Justice would nominate a government department —almost certainly the CPS—to inform victims and their families of the type of sentence that has been passed, the time limit for an application to be made by the Attorney-General, and that an application by a victim or their family for an increase in the sentence should be made to the Attorney-General, so you do not end up in a circumstance where the victim finds out only at the very last moment that this right exists.
Amendment 196B would allow in very exceptional circumstances the time limit of 28 days which applies to the ULS scheme to be extended. It should be extended only in exceptional circumstances. Those circumstances should include but not be limited to where the relevant body which is obliged to notify the victim or the victim’s family of the existence of the scheme fails to do so. If there was this limited discretion to extend the 28-day period, that would avoid the feeling of injustice that Josh’s mother and the rest of her family experienced.
My Amendment 196C says that, within 12 months from the date upon which the Bill becomes law, the Secretary of State shall undertake a review of the offences to be included within the scope of the ULS scheme to allow consideration of whether other offences should be added. Amendment 196D seeks to render cases tried in the youth court, where they are for one of the index offences, also subject to the ULS scheme. I beg to move.

Baroness Brinton: My Lords, I am pleased to support the noble and learned Lord, Lord Falconer, on Amendments 196A to 196D, and I thank him for so ably and eloquently presenting the importance of  these changes. I am sorry that the noble Baroness, Lady Newlove, has been unexpectedly called away, but, as your Lordships’ House knows, she was the Victims’ Commissioner, and, through her work with victims, she has asked me to say that she is extremely supportive of this group.
I think that most people are aware of the fundamental right in our justice system to appeal a sentence handed down by a judge. Following a sentence hearing, a convicted offender will meet with their lawyer to discuss what comes next and what their rights are with regard to an appeal. This is a fundamental and correct part of our process, and we should hold it in high regard. But what many are not aware of—and this leads me to the necessity of these amendments—is the unduly lenient sentence scheme, which provides the right for anyone to appeal a sentence. This right is of particular importance to the victims of crime and bereaved family members, and the scheme is recognised as a key entitlement in the victims’ code of practice. Operated by the Attorney General’s Office, it provides this fundamental right, which is an important process for victims and bereaved families and can bring comfort and increased confidence in the justice system.
However, as we heard from the noble and learned Lord, Lord Falconer, these rights are not equal in policy or practice, and many victims find themselves learning of their rights by chance, too late or not at all, all of which can have a devastating impact on a victim’s recovery. The scheme, like an offender’s right of appeal, has a time limit of 28 days. This limit provides some assurance for those involved, which we think is important. However, this is where the parity between victim and offender ends, and the amendments tabled by the noble and learned Lord, Lord Falconer, would rectify the problem. While offenders are told of their right to appeal almost immediately following the sentencing, we know that many victims are never informed of their rights at all.
I will briefly tell you about someone who has been denied her rights under this scheme. Claire, a loving mother to a young daughter, was stabbed repeatedly and had her throat slashed by her ex-partner. Thankfully, Claire survived this most horrific of attacks, which was carried out in the presence of her daughter. The offender in the case was arrested and charged, and plead guilty to attempted murder earlier this year. He was handed a life sentence but with a minimum term of just eight years. No justice agency told her of the unduly lenient sentence scheme, and it was only while speaking to Tracey Hanson, whom the noble and learned Lord, Lord Falconer, referred to, that she became aware of it. She spoke to the police about it, and they incorrectly told her that she could not appeal due to the offender having received a life sentence.
The problem is the lack of clarity about this scheme, and the lack of responsibility for telling a victim meant that Claire was unable to request that the sentence be appealed within the 28 days. And so the man who slashed her throat her in front of her young daughter may be released in as little as eight years. We must stop failing victims who bravely come forward to bring offenders to justice and whom we repay with this appalling treatment and injustice.
The revised victims’ code of practice, which came into force in April and codifies the rights and entitlements of victims of crime, assigns this responsibility for informing victims to witness care units. While this is useful and important, it fails to realise that many victims and bereaved family members will have no contact at all with witness care units, leaving many still unaware of their rights. So we must ensure that victims and bereaved families are informed in good time after sentencing, because it is absolutely vital that they are able to use their right to appeal if they so want.
These amendments also seek that the Secretary of State conduct a review of eligibility under the scheme, opening up the possibility of including further serious offences, with the aim of delivering this vital right to more people. Gareth Johnson, MP for Dartford, speaking in the other place, talked passionately of the experience of his constituents: the family of Gemma Robinson, who was brutally beaten by her partner, who was the subject of a restraining order following a previous assault against her. Following this, her partner was arrested and charged with Section 18—grievous bodily harm—an offence recognised under this scheme. Tragically, Ms Robinson took her own life prior to his appearance in court and the charge was reduced to Section 20, malicious wounding. This offence, as it stands, is ineligible for the unduly lenient sentence scheme, so Ms Robinson’s family could do nothing as a sentence of just 3.5 years was handed down.
I thank the London victims’ commissioner, Claire Waxman, and her office for their tireless work in pushing for reform to the unduly lenient sentence scheme. I thank the noble and learned Lord, Lord Falconer, for tabling these amendments and making the possibility of reform a reality. I urge the Minister to support this amendment, not just for those whom the system has failed but for those whom it can stand to benefit in future—those victims and families who feel that in their case justice was not done.

Lord Wolfson of Tredegar: My Lords, the amendments all refer to the unduly lenient sentence scheme, which is set out in Sections 35 and 36 of the Criminal Justice Act 1988. It allows anyone to ask for certain sentences imposed by the Crown Court to be considered by the law officers where the sentence is felt to be unduly lenient. The law officers—it is ultimately their decision, for reasons I will come back to—may then decide to refer the case to the Court of Appeal. Once it gets there, it is a matter for the Court of Appeal to decide whether the sentence should be increased.
I should underline that it is not a right available to anyone to ask the court to reconsider the sentence. The way the system works is that the request is made to the law officers; their role is to ask the court to increase the sentence. That was set out deliberately and rightly in the scheme. We prosecute in this country in the name of the Crown; we do not have, with very few exceptions, private criminal prosecutions. The instances of the scheme going wrong or people not knowing about it, as we have just heard in the cases of Tracey Hanson and the appalling murder of her son Josh, and the terrible attack on Claire in front of her young daughter, are terrible to hear about. One can only imagine the consequences for those families.
I therefore understand the motivation behind Amendment 196A. It is critical that victims, prosecuting authorities and members of the public are aware of the ULS scheme. I heard the noble Baroness, Lady Brinton, talk about a lack of clarity. She quite rightly referred to the revised Code of Practice for Victims of Crime, or the victims’ code—I am grateful to her for doing so—which came into force on 1 April this year. It provides victims with the right to be informed about the existence of the scheme and includes, as we heard, a requirement for the witness care unit to inform victims about the scheme promptly when sentencing takes place. In addition, the Crown Prosecution Service references the scheme in its leaflet entitled Information for Victims. There is provision in place to ensure that victims and their families are informed of the scheme.
It is not the case that it is left to victims or bereaved families to contact the law officers. The Crown Prosecution Service can and does make requests directly to the Attorney-General for cases to be referred to the Court of Appeal in instances where the prosecuting authority considers the sentence to be unduly lenient. Those requests are considered by my right honourable and learned friend the Attorney-General in the way that she considers all such requests. While I understand the motivation behind Amendment 196A, I suggest that it is not required.
Amendment 196B, the noble and learned Lord’s second amendment, would create an open-ended time limit for an application for permission by the Attorney-General in certain cases. Again I understand why that is being proposed, but again I do not agree. Of course I acknowledge that here we are dealing with offenders who have sometimes committed very serious crimes, but it is none the less right—and I suggest it is an important principle in the criminal justice system—that an offender should have certainty about the sentence they are to serve. As the ULS scheme is a rare exception to this rule, it is tightly circumscribed, in particular by requiring an application by the law officers to be made to the Court of Appeal no more than 28 days from the date of sentence. That time limit reflects the importance of finality in sentencing. While we will keep—as we already do, and I will come back to this in a moment—the entire ULS scheme under review, including the 28-day time limit, we have no current plans to remove the certainty of an absolute time limit in any circumstances.
Amendment 196C, the third amendment in this group tabled by the noble and learned Lord, proposes a requirement to review and consult on the scope of the scheme on an annual basis. This requirement would be unduly burdensome but, as I said a moment ago, it is also unnecessary because we keep the scheme under review, which has led to action. This Government have extended the scope of the scheme a number of times since 2017 to include terror-related offences, child sexual abuse and other sex offences, stalking and harassment involving violence, and controlling and coercive behaviour. Of course a case may be made for further offences to be added, and we keep the scheme under review. However, I underline the point that, when setting up the scheme, Parliament intended it to be an exceptional power—the debates make this clear—so any decision to extend the scheme would not be straightforward.
Amendment 196D, the final amendment in this group, suggests that the scheme should apply to offences tried in a youth court, to which it does not currently extend. However, the amendment not only extends the application of the scheme to the youth court but applies it to any offence dealt with in that court, however minor that offence was. Although I am sure it was not the noble and learned Lord’s intention and I am not suggesting it was, the effect of the wording—I appreciate we could draft it out—would be to apply the scheme to sentences for offences in the youth court which could not be referred if they had been committed by an adult. I see him nodding. I ought to point that out because we are discussing the scope of amendment.
A youth court can sentence a child to up to two years’ detention only. For all sentences over two years—as we heard from the noble Lord, Lord Paddick, I think, earlier—a youth case must be passed to the Crown Court. In serious cases, a youth court can decide to send a child to the Crown Court for trial, or a child can be committed to the Crown Court for sentence. Therefore, the ULS scheme already applies to serious youth offences worthy of the greatest scrutiny because those sentences are handed down in the Crown Court where the ULS scheme would be available. That reflects the intention of Parliament when setting up the scheme: that it is reserved for the most serious cases. Therefore, it is not necessary or appropriate to include offences tried in youth courts in the ULS scheme. For those reasons, I invite the noble and learned Lord to withdraw his amendment.

Lord Falconer of Thoroton: I express my gratitude to the noble Baroness, Lady Brinton, and, through her, to the noble Baroness, Lady Newlove, for their support on these amendments. I also thank the Minister for his careful reply.
Again, very briefly, it is disappointing that, in relation to whether there should be a duty on the Secretary of State to get a government department to be under a duty to tell victims of the possibility of going to the law officers, the Minister’s answer was that the witness care units have a code of practice that tells them they should do that, and it is in a pamphlet produced by the CPS. With respect, I take the noble Lord to be accepting that somebody should tell them. If we really want that to happen, we should impose a duty on the Secretary of State to do that. So I am not sure that we are necessarily at odds on the outcome, but I think that, if one is serious about it, this is the way to do it.
In relation to the time-limit point, the defendant can have his time extended, which brings a degree of uncertainty to victims. In my respectful submission, there should be a similar parity of protection for the victims who wish to question the sentence. Again, there can be limits on that exception, and I am more than happy to entertain any limits that the Minister thinks should be put in—but there must be some means of extending it because of justice.
In relation to the other two, I do not think that I can achieve much by referring to them, except to confirm that my intention in relation to Amendment 196D was to deal only with offences that would otherwise be subject to it in the adult court.
I beg leave to withdraw the amendment.
Amendment 196A withdrawn.
Amendments 196B to 196D not moved.
Schedule 11 agreed.

  
Clause 102: Whole life order as starting point for premeditated child murder
  

Amendment 197 not moved.
Clause 102 agreed.
Clause 103 agreed.

  
Clause 104: Starting points for murder committed when under 18
  

Amendments 198 to 201 not moved.
Clause 104 agreed.

  
Clause 105: Sentences of detention during Her Majesty’s pleasure: review of minimum term
  

Amendments 202 and 203 not moved.
Clause 105 agreed.
Clause 106 agreed.

  
Clause 107: Increase in requisite custodial period for certain violent or sexual offenders
  

Amendment 204 not moved.

Amendment 205

Lord Wolfson of Tredegar: Moved by Lord Wolfson of Tredegar
205: Clause 107, page 94, line 36, leave out “may be imposed” and insert “could have been imposed (in the case of an offender aged 21 or over) at the time when the actual sentence was imposed”Member’s explanatory statementThis provides that the longer period before release for sentences within new section 244ZA(4) of the Criminal Justice Act 2003 will apply only in relation to offences that were punishable with life imprisonment at the time of sentencing (not offences that are later made so punishable).

Lord Wolfson of Tredegar: My Lords, this is a drafting amendment to Clause 107. Its purpose, as I hope has been explained, is to prevent a prisoner who is serving a sentence for an offence which, at the time it was imposed, did not carry a maximum penalty of life imprisonment, having their release date changed retrospectively from the half-way to the two-thirds point.
Such an offender should not be made subject to the two-thirds release provisions of Clause 107 should the maximum penalty for their offence be increased to life at a later date, after they were sentenced. Let me give an example that I hope the Committee will find helpful. An offender is sentenced for an offence that currently carries a maximum of 10 years’ imprisonment. They receive an eight-year determinate sentence. That sentence is not caught by the two-thirds release requirements  because the offence does not carry a maximum penalty of life imprisonment, so the offender is given a half-way release point. Now let us assume that, three years later, the Government increase the maximum penalty for that offence to life imprisonment. Without this amendment, the offender would have their release point retrospectively amended from the half-way to the two-thirds point of the sentence.
That was not the intention of Clause 107, and it is important that we correct this now. With this amendment, Clause 107 is future-proofed appropriately and as intended. It applies to those sentenced for offences that are increased to a life maximum in the future, but applies only to those sentenced after that increase in the maximum sentence becomes law. The amendment will ensure a fair and consistent approach to such offences. For those reasons, I beg to move this amendment.

Lord Marks of Henley-on-Thames: My Lords, we support these amendments. It is obviously right to remove the retrospection and we congratulate whoever spotted the anomaly and brought the amendments to the Committee.
Amendment 205 agreed.
Amendment 206 not moved.

Amendment 207

Lord Wolfson of Tredegar: Moved by Lord Wolfson of Tredegar
207: Clause 107, page 95, line 24, leave out “may be imposed” and insert “could have been imposed (in the case of an offender aged 21 or over) at the time when the actual sentence was imposed”Member’s explanatory statementThis provides that the longer period before release for sentences within new section 244ZA(5) and (6) of the Criminal Justice Act 2003 will apply only in relation to sexual offences that were punishable with life imprisonment at the time of sentencing (not offences that are later made so punishable).
Amendment 207 agreed.
Clause 107, as amended, agreed.
Clause 108 agreed.

  
Clause 109: Power to refer high-risk offenders to Parole Board in place of automatic release

Amendment 208

Lord Carlile of Berriew: Moved by Lord Carlile of Berriew
208: Clause 109, leave out Clause 109 and insert the following new Clause—“Power to refer high-risk offenders to High Court for consideration of referral to Parole Board in place of automatic release(1) The Criminal Justice Act 2003 is amended in accordance with subsections (2) to (10).(2) In section 243A (release of prisoners serving sentences of less than 12 months), after subsection (2) insert—“(2A) Subsection (2) does not apply if—(a) the prisoner’s case has been referred to the High Court or the Board under section 244ZB, or(b) a notice given to the prisoner under subsection (4) of that section is in force.”  (3) In section 244 (general duty to release prisoners), after subsection (1) insert—“(1ZA) Subsection (1) does not apply if—(a) the prisoner’s case has been referred to the High Court or the Board under section 244ZB, or(b) a notice given to the prisoner under subsection (4) of that section is in force.”(4) After section 244 insert—“244ZB Referral of high-risk offenders to High Court in place of automatic release(1) This section applies to a prisoner who—(a) would (but for anything done under this section and ignoring any possibility of release under section 246 or 248) be, or become, entitled to be released on licence under section 243A(2), 244(1) or 244ZA(1), and(b) is (or will be) aged 18 or over on the first day on which the prisoner would be so entitled.(2) For the purposes of this section, the Secretary of State is of the requisite opinion if the Secretary of State believes on reasonable grounds that the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission of any of the following offences—(a) murder;(b) specified offences, within the meaning of section 306 of the Sentencing Code.(3) If the Secretary of State is of the requisite opinion, the Secretary of State may refer the prisoner’s case to the High Court.(4) Before referring the prisoner’s case to the High Court, the Secretary of State must notify the prisoner in writing of the Secretary of State’s intention to do so (and the reference may be made only if the notice is in force).(5) A notice given under subsection (4) must take effect before the prisoner becomes entitled as mentioned in subsection (1)(a).(6) A notice given under subsection (4) must explain—(a) the effect of the notice (including its effect under section 243A(2A), 244(1ZA) or 244ZA(3)),(b) why the Secretary of State is of the requisite opinion, and(c) the prisoner’s right to make representations (see subsection (12)).(7) A notice given under subsection (4)—(a) takes effect at whichever is the earlier of—(i) the time when it is received by the prisoner, and(ii) the time when it would ordinarily be received by the prisoner, and(b) remains in force until—(i) the Secretary of State refers the prisoner’s case to the High Court under this section, or(ii) the notice is revoked.(8) The Secretary of State—(a) may revoke a notice given under subsection (4), and(b) must do so if the Secretary of State is no longer of the requisite opinion.(9) If a notice given under subsection (4) is in force and the prisoner would but for the notice have become entitled as mentioned in subsection (1)(a)—(a) the prisoner may apply to the High Court on the ground that the prisoner’s release has been delayed by the notice for longer than is reasonably necessary in order for the Secretary of State to complete the referral of the prisoner’s case to the High Court, and  (b) the High Court, if satisfied that that ground is made out, must by order revoke the notice.(10) At any time before the High Court disposes of a reference under this section, the Secretary of State—(a) may rescind the reference, and(b) must do so if the Secretary of State is no longer of the requisite opinion.(11) If the reference is rescinded, the prisoner is no longer to be treated as one whose case has been referred to the High Court under this section (but this does not have the effect of reviving the notice under subsection (4)).(12) The prisoner may make representations to the Secretary of State about the referral, or proposed referral, of the prisoner’s case at any time after being notified under subsection (4) and before the High Court disposes of any ensuing reference under this section.But the Secretary of State is not required to delay the referral of the prisoner’s case in order to give an opportunity for such representations to be made.(13) Upon hearing a reference, the High Court must determine whether the prisoner would, if released, pose a significant risk to members of the public of serious harm occasioned by the commission of an offence under subsection (2) and either—(a) allow the Secretary of State’s reference, or(b) dismiss the Secretary of State’s reference.(14) If the High Court allows the Secretary of State’s reference, the Secretary of State must refer the prisoner’s case to the Parole Board.(15) If the High Court dismisses the Secretary of State’s reference, section 243A(2), 244(1) or 244ZA(1), as applicable, of the Criminal Justice Act 2003 applies to the prisoner.244ZC Proceedings following reference under section 244ZB(1) This section applies to a prisoner whose case has been referred to the Parole Board under section 244ZB.(2) If, in disposing of that reference or any subsequent reference of the prisoner’s case to the Board under this subsection, the Board does not direct the prisoner’s release, it is the duty of the Secretary of State to refer the prisoner’s case to the Board again no later than the first anniversary of the disposal.(3) It is the duty of the Secretary of State to release the prisoner on licence as soon as—(a) the prisoner has served the requisite custodial period, and(b) the Board has directed the release of the prisoner under this section.(4) The Board must not give a direction under subsection (3) in disposing of the reference under section 244ZB unless the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.(5) The Board must not subsequently give a direction under subsection (3) unless—(a) the Secretary of State has referred the prisoner’s case to the Board under subsection (2), and(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.(6) For the purposes of this section, the “requisite custodial period” means the period ending with the day on which the prisoner would have become entitled as mentioned in section 244ZB(1)(a).”(5) In section 246(4) (exceptions from power to release early subject to curfew), after paragraph (f) insert—  “(fa) the prisoner’s case has been referred to the Board under section 244ZB,(fb) a notice given to the prisoner under subsection (4) of that section is in force,”.(6) In section 255A(2) (duty to consider suitability for automatic release following recall of certain prisoners) (as amended by the Counter-Terrorism and Sentencing Act 2021), for “or a serious terrorism prisoner” substitute “, a serious terrorism prisoner or a prisoner whose case was referred to the Board under section 244ZB”.(7) In section 255C(1) (prisoners whose release after recall is not automatic), for the words from “who” to the end substitute “—(a) whose suitability for automatic release does not have to be considered under section 255A(2), or(b) who is not considered suitable for automatic release.”(8) In section 260(5) (powers and duties of Secretary of State that continue to apply to prisoner removed from prison pending deportation), after “244,” insert “244ZB,”.(9) In section 261(5)(b) (application of release provisions to returning deported prisoner), after “244,” insert “244ZC,”.(10) In section 268(1A) (meaning of “requisite custodial period” in Chapter 6 of Part 12), after paragraph (c) insert—“(ca) in relation to a prisoner whose case has been referred to the Parole Board under section 244ZB, the requisite custodial period for the purposes of section 244ZC;”.(11) In Schedule 1 to the Crime (Sentences) Act 1997—(a) in paragraph 8(2)(a) (provisions relating to release continuing to apply to prisoner transferred from England and Wales to Scotland), for “, 244,” substitute “to”;(b) in paragraph 9(2)(a) (provisions relating to release continuing to apply to prisoner transferred from England and Wales to Northern Ireland), for “, 244,” substitute “to”.(12) In section 128 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (power to alter test for release on licence at direction of Parole Board)—(a) in subsection (2), after paragraph (b) insert—“(bza) a prisoner whose case has been referred to the Parole Board under section 244ZB of the Criminal Justice Act 2003 (power to refer to Parole Board in place of automatic release),”;(b) in subsection (3), before paragraph (ab) insert—“(aaa) amend section 244ZC of the Criminal Justice Act 2003 (proceedings following reference under section 244ZB of that Act),”.”

Lord Carlile of Berriew: My Lords, this amendment stands in my name and the names of other noble Lords. In one way, this amendment is modest, although I regret that it is not modest in length. Indeed, I think it is the longest amendment on the current Marshalled List, winning that dubious honour, by only a short head, over Amendment 259C tabled by the noble Lord, Lord Marks of Henley-on-Thames.
Our amendment leaves intact the legislative intention of Clause 109 to provide a safeguard against the early release of a prisoner serving a determinate sentence who presents a significant risk to members of the public. The amendment’s less modest intention is, quite simply, to preserve the separation of powers—not to give a Secretary of State the power to in effect change and lengthen sentences. It transfers the initiation of the safeguard that is sought from the Executive to  the judiciary. It will enable a full hearing of the facts before a prisoner has their case referred to the Parole Board. A Secretary of State who is using this power appropriately has absolutely nothing to fear from this safeguard. It preserves the necessary separation between an elected politician and an individual prisoner who has been sentenced.
I am grateful to the noble and learned Lord, Lord Garnier, the noble Baroness, Lady Prashar, and the noble Lord, Lord German, for co-signing the amendment. The noble and learned Lord, Lord Garnier, was kind enough to get in touch with me this morning to say that he had a professional engagement elsewhere. I checked that he had not picked up a returned brief in the Virgin Islands from a Member of another place, and I am sure that that is not what happened. I am also particularly pleased that the amendment is tabled with the support of the Sentencing Academy, the Prison Reform Trust and Justice—all highly respected and thoughtful organisations.
At the heart of Clause 109 lies an assessment of dangerousness. The clause is aimed at a small number of prisoners who have been underclassified at the point of sentencing. The scenario cited in the White Paper concerns people who are assessed as presenting a terrorist threat, but who are in prison serving a sentence for a non-terrorism-related offence, and offenders who are deemed to present a significant danger to the public for other reasons but whose offending behaviour and assessment of dangerousness at the point of sentencing did not meet the threshold for a finding of dangerousness. One can think of many examples, but familiar to me because of my interest in terrorism offences is people who have been sentenced for quite mundane crimes but who are radicalised in prison and present a high degree of dangerousness at a time when they otherwise might be released.
These are legitimate concerns. I recognise—and I think we should all recognise—that Clause 109 can offer only an imperfect solution, but one predicated on the Government’s duty to protect the public from dangerous people. The practical danger posed by finding a prisoner dangerous post sentencing is that, when a prisoner genuinely does present a significant danger to the public, the Parole Board will be unable to order their release before the end of their full custodial sentence. The result is that, upon release, these potentially dangerous offenders will be subject to no licence conditions, as many prisoners are. They can be released to NFA—no fixed address—and be lost to the system very quickly. Particularly when the perceived risk is around non-terrorism offending, there will be few available options to manage them in the community. If the authorities move quickly, there are measures for potential terrorist offenders, such as TPIMs, which can be used, although they are very small in number as used at the moment.
However, if there are cases in which the public is better protected by the delayed release of a prisoner, my argument, and the argument of those of us who have signed this amendment, is that this should be a judicial decision and not one at the discretion of the Secretary of State. The practical effect of the Secretary  of State exercising this power will be a member of the Executive intervening in the sentence of an individual prisoner to ensure that they will spend their full sentence in custody—perhaps many additional years in prison—unless the Parole Board, which is very well trained in these cases, with a training that is second to none, decides that it is no longer necessary for the protection of the public that the person should remain in prison. What we have in the clause as drafted is a de facto finding of dangerousness by the Secretary of State, which places on the prisoner the reverse burden to demonstrate that their continuing detention is no longer necessary for the protection of the public. On making a decision to refer a case to the Parole Board, the default position then is that the prisoner will serve their full sentence in prison—so the operative decision here is the referral to the Parole Board.
Assessments of dangerousness do not lie comfortably with Secretaries of State. In the debates we have had on this Bill—I have done it, and others have done it—we have all cited cases that have been brought to us by members of the public. The Sarah Everard case is an example, which I used earlier. It is a very emotive case. One feels very angry as a citizen about what the man who killed her did. That is so in many other cases. The one that the noble and learned Lord, Lord Falconer of Thoroton, cited an hour or so ago fell into the same category. The danger is with such cases that politicians can not only express the anger and ask the Government to do something about it, but that a Secretary of State feels politically driven to do that thing about it. My argument is that these assessments of dangerousness lie properly with the courts. As the noble and learned Lord, Lord Thomas of Cwmgiedd, said in the Second Reading debate:
“I am sure that no one wants to see us go down the road of terms of imprisonment being extended other than by an independent judicial body … the … hallmarks of our system require independence from political interference and decisions on custody being totally in the hands of independent bodies”.—[Official Report, 14/9/2021; col. 1303.]
As drafted, this clause places an enormous degree of discretion in the hands of the Secretary of State.
While the White Paper refers to prisoners who become of significant public concern, there is no such requirement for new information in Clause 109. There is nothing to prevent the Secretary of State simply disagreeing with the decision of the sentencing judge, who has had all the material evidence and reports before him or her. This gives rise to the risk of political pressure, which the noble and learned Lord, Lord Thomas of Cwmgiedd, also alluded to at Second Reading. Furthermore, the Secretary of State requires only a reasonable belief that there would be a significant risk to the public, a lower bar than the courts are required to use when assessing dangerousness under Section 308 of the Sentencing Code, which necessitates a finding that there is such a risk. In my view that is a proper, fair test.
The current clause offers few procedural safeguards to prisoners who may have to spend several extra years in prison at the instigation of a Secretary of State. There will be no full hearing of the facts before the reference is made. The prisoner is able to make representations to the Secretary of State before the  Secretary of State makes a referral to the Parole Board, but that is a very limited opportunity. It is unclear what practical benefit this might provide for the prisoner, especially where the Secretary of State has also made or expressed a view. Even this right is constrained by the Secretary of State not expressly being required to delay a referral to the Parole Board in order to give the prisoner an opportunity to make representations; and prison is a difficult place from which to make representations, whether legal aid is available or not.
It is unclear how and when cases will be brought to the Secretary of State’s attention, by what mechanism and with what level of evidence. Will it be evidence that is transparent and accountable, to give rise to the possibility of judicial review? We have been told nothing about that. Although apparently aimed at a small number of prisoners, the decision to apply this provision to there being a risk of the commission of any specified offence, rather than restricting it to terrorism offences or a shorter list of the most serious offences, means that this provision could be applied to almost any serving prisoner.
I respectfully suggest that there should be little controversy attached to the key purpose of this amendment, which is to transfer to the High Court the final decision as to whether to refer a case to the Parole Board. The Secretary of State will enjoy the additional power to ask the High Court to determine whether automatic release should be halted for any prisoner serving a determinate sentence. The High Court will then carry out an empirical examination on the basis of evidence—lay and expert—just as any sentencing court does, determining whether an offender presents a significant risk of harm to members of the public.
These are difficult decisions and this is a difficult issue, but the public is better protected by these decisions being made in a conventionally open, transparent and independent way: namely, in a courtroom rather than an office in Whitehall. I beg to move.

Lord German: My Lords, I have added my name to this amendment not because of its length but because of its importance. The noble Lord, Lord Carlile, has explained exactly the constitutional significance of this matter. Clause 109 as it stands will create a new power for the Secretary of State for Justice to be able to vary, after the imposition of sentence, the effect of a standard determinate sentence for individual prisoners. This provision would empower the Secretary of State to halt the automatic early release of a prisoner if they believed that, if released, the prisoner would pose a significant risk of serious harm to members of the public by committing either murder or a specified offence. Instead of automatic release, these prisoners would be referred to the Parole Board and kept in prison to serve their full sentence if the Parole Board does not deem them safe to release.
The main purpose of this amendment is not to change the action of having a referral but to change where that decision is laid. It is to ensure that decisions about sentencing are taken by the judiciary and not by the politician. Many of us here are politicians, and most of us would regard ourselves as politicians. In that role, when we have taken certain actions it has  often been described as political interference. Political interference is of course what this amendment is trying to put to one side. It is to ensure that there is a fair and appropriate hearing and to ensure the strength of the independence of our judiciary and that it retains its ability to make judgments of the kind envisaged in this amendment.
As it stands, the operative actions on the rules on a determinate sentence are to be taken by the Secretary of State. The purpose of this amendment is therefore to uphold the judicial process while still giving effect to the outcome sought in the Bill as presently drafted. It will ensure that there is no inadvertent or intentional political bias that could result in a prisoner serving longer in prison than was envisaged by the sentencing judge.
The division between the Executive, Parliament and the judiciary is a fundamental pillar of our society and should be upheld. At public expense, we send many Members of this House and the other place around the world to try to strengthen the judiciaries in many developing countries. One of the tenets of that work is that there is a strong and independent judiciary. I think it is important that we make sure that we uphold that principle here in Parliament so that we do not move from it.
We are not given an understanding of the tests which will be applied for the Secretary of State to make a direction for a Parole Board hearing. I do not want to start a discussion again about the definition of words, but what are the reasonable grounds? There is no suggestion that the Secretary of State would have to publish the grounds which guide their decision to refer to the Parole Board. We simply do not know what those grounds might be beyond some indications we get in ministerial Statements.
There is a strong incentive for Ministers to say: “There is a public matter here. I can sense that the public are concerned about an issue.” They will then refer it to the Parole Board and the Parole Board would see no political advantage in not referring it and would accept the case as it was given. There would be a momentum for the Secretary of State when matters arose to just simply say that they would be automatically referred.
The effect of this provision in practice will depend heavily on any gatekeeping process before cases are brought to the Secretary of State’s attention. I hope that, when the Minister replies, he will tell us who will be the gatekeeper and what the gate will be like.
The second concern, which the noble Lord, Lord Carlile, has mentioned, is that if prisoners were to be directed by the Parole Board to serve their full term, this would eliminate the ability for such prisoners to transition to community life through the use of licences. The licence provision has been a powerful tool in the rehabilitation process, allowing certain freedoms under supervision. Licences play an important part in transitioning to work and integration into society.
Following due process and limiting arbitrary power are hallmarks of a free society. That is what is at the heart of this amendment, and I ask noble Lords to support it.

Viscount Hailsham: My Lords, I support the purpose of this proposed new clause. It is highly desirable that there should be a judicial intervention in the process. The arguments of principle have been articulated by the noble Lords, Lord Carlile and Lord German, and so I will not repeat them, but I will make one or two points about the provision in the Bill and the proposed new clause.
First, the noble Lord, Lord Carlile, expressed concern about the circumstances in which the Home Secretary might form the requisite opinion, and set out his reasons; and he was right to. If I may, I will share with the Committee my experience when I was at the Home Office at the back end of the 1980s. I am well aware that the procedure is wholly different, but I have a fear that it will be replicated in this instance.
As the Parliamentary Under-Secretary, I was responsible for setting the initial ruling on the tariffs of the life-sentence offenders, which then went to the Home Secretary. What happened in those days was that one got in one’s box, often very late at night, a submission from the department in which it set out a very brief summary of the offence. Associated with that were the comments of the trial judge, if the trial judge was still around, together with the comments of the Lord Chief Justice, and then followed the recommendation of the department—12 years, or whatever. At that point, the Parliamentary Under-Secretary had to form a view; he or she scribbled “12 years” or “14 years” on top of the paper, and it went to the Home Secretary, who in the generality of the cases would accept the advice.
I know that the circumstances have changed profoundly, but the department might very well copy that process in terms of advising the Secretary of State about whether he or she has the requisite opinion. I think that would be profoundly unfair and I therefore very much welcome the judicial intervention contemplated by the proposed new clause, which is right in principle.
I will make three smaller points. First, in the Bill, the Secretary of State has to set out his or her reasons. I hope very much that there will be a requirement that the reasons are fully deployed. What I fear will happen is that the Secretary of State will simply repeat the language of the Act—simply to say that there is a significant risk, and so on. What the prisoner needs to know is the basis on which that judgment is formed, because otherwise the prisoner cannot really address it. So my point to the Minister is that the reasons must be full.
The second point is rather related. I am deaf, but I am wearing my hearing aids and I think I heard the noble Lord, Lord Carlile, say that the High Court would conduct a full hearing. That was the phrase he used and that is what we need to know: what is the procedure? If the High Court will do only a paper exercise, in my view that is not good enough. It is very important that the procedure before the High Court, before the authority is issued, is a full hearing, or at least has the ability for a full hearing. That means making a submission, a proper argument, and all the rest.
Lastly—I accept that this is a drafting point, but we are in the business of drafting—subsection (13) of the new clause proposed by the noble Lords provides the word “would”: the High Court concludes that there would be a significant risk to the public. I question the word “would”. A word such as “might” would seem to be much better because, if the High Court has asserted that there “would” be a risk, that seems to prejudge the issue as it comes before the Parole Board, which might have some difficulty in concluding that there was no risk. So I acknowledge that it is a drafting point, but I would like the word “might” or something like it to be inserted rather than the word “would”. That said—and I hope I have not been too pedantic—I do think that this is a very important proposal articulated by two of the noble Lords who put their names to it, and I strongly support it.

Lord Falconer of Thoroton: My Lords, this is a very interesting proposal. I think we all agree, across the House, that where somebody is entitled to automatic release at half or two-thirds of their sentence, if there is proper material from which the conclusion can be reached that the defendant poses a significant danger to the public, then the automatic release date should not apply, and presumably the defendant should then be kept in prison until the end of the nominal sentence. As the Bill is currently drafted—putting it shortly—if there are reasonable grounds for the Secretary of State to believe that the defendant might pose such a risk, the Secretary of State can refer it to the Parole Board to decide.
What the noble Lord, Lord Carlile of Berriew, wants is that, if the Secretary of State forms that view, he or she should refer the decision to the High Court. The High Court would then make a determination on the substance of the issue: whether the prisoner constitutes a danger. The noble Viscount, Lord Hailsham, called it a drafting point, but as I understand the drafting here, if the High Court forms the view that the prisoner does constitute such a danger, the High Court does not determine whether or not the prisoner is released but refers the matter to the Parole Board. In his opening speech on the amendment, the noble Lord, Lord Carlile, said he believes that the operative decision should be made by the Parole Board, not the High Court.
Necessarily, that ends up with a situation where what the High Court is deciding, one way or another, is whether there are proper grounds for the Secretary of State’s belief that the prisoner may pose a risk. It would be necessary to amend the amendment to say that, because otherwise the operative decision is plainly being taken by the High Court, not the Parole Board—and the noble Lord, Lord Carlile, wants the decision to be taken by the Parole Board, which I understand. Once you get to that point—namely. whether there are proper grounds for the Secretary of State’s belief—then it is judicial review, so I am not sure what is added by this proposal.
I do not wish to give away any secrets, but I am sure there are Secretaries of State who, under press or political pressure, would refer such a decision to a body with the power to determine whether or not somebody should be released at the automatic release date. Whether the reference is to the Parole Board or to the High  Court, honestly, Secretaries of State will still be guided by political considerations. As far as the Secretary of State is concerned in the notional example given, if they want to make a political point they will refer it to whoever the statute says they should, irrespective of their precise state of knowledge, for political reasons. The noble Viscount, Lord Hailsham, and the noble Lord, Lord Carlile of Berriew, are saying that they will be pushed into it by politics. Well, under his amendment, they will be pushed into referring it to the High Court, and under the Minister’s position they will be pushed into referring it to the Parole Board, which is where the noble Lord, Lord Carlile of Berriew, wants it to end up anyway.
I am not sure that this amendment achieves much, as it pushes you back into judicial review, which is where we are already. I am sympathetic to the position adopted, but—I put this advisedly—if the noble Lord, Lord Carlile of Berriew, was willing to put his money where his mouth is, surely the end point should be that the High Court decides. That would provide a much more effective safeguard. This does not quite get there.

Lord Wolfson of Tredegar: My Lords, we have had a very interesting debate. The last few speeches have highlighted the problems with the approach that I was going to set out. In short, where we end up on this amendment is, in effect, the High Court taking the decision and not the Parole Board. I shall come back to the “would” point made by my noble friend Lord Hailsham, which I was going to make as well and is absolutely right.
The amendment would require the Secretary of State first to refer high-risk offenders to the High Court. They could then be referred to the Parole Board only with the court’s approval. That is the structure that we are dealing with. The structure in our clause is that the Secretary of State refers directly to the Parole Board. If referral to the High Court is put in as an intermediate process, it would mean two things. First, the High Court may reject the referral from the Secretary of State if it did not agree that the offender would pose a risk of serious harm. My concern is secondly that, if the High Court did consider that the offender would pose a risk of serious harm, it would roll the pitch in a very serious way for the Parole Board.
I therefore have concerns about both the necessity and the benefit of involving the High Court in this process, but nothing I am going to say is intended to undermine two points on which I agree with the noble Lord, Lord German; first, on the importance of due process and, secondly, that we should limit arbitrary power. I suggest that the court does set out due process and limits arbitrary power.
The important point to bear in mind is that the new power is not a re-sentencing exercise. It is not the Secretary of State extending the detention of the prisoner. I fully accept the point made by the noble Lord as to the important boundary between Secretary of State and judge, between Executive and judiciary. I also want to have a strong and independent judiciary; I believe we do. That principle is not contravened by this clause, because it is the independent Parole Board that will make the final decision as to whether an  offender is safe to be released early. The Secretary of State has the power to make a referral, but he or she must have a sound basis for doing so and must give the prisoner notice, which must include the grounds for making the referral and give the prisoner the opportunity to make representations to the Secretary of State.
As for the criteria in play, we will closely monitor and record how the power is used. We will publish a policy which clearly outlines the threshold that must be met and the principles which will underpin the Secretary of State’s decision-making procedure in determining whether to refer a case to the Parole Board.

Lord German: That was a good statement of intent. When do the Government expect to be able to produce that? Would it be before we have concluded this Bill, so we will know where we are going with it?

Lord Wolfson of Tredegar: I do not want to give an incorrect answer to the noble Lord. I know that there are different codes of practice and different sets of procedures in various parts of the Bill. Can I get back to him in writing on that point, so that the Committee knows where it is before Report?

Viscount Hailsham: On a related point—the obligation on the Secretary of State to give reasons—how detailed should those reasons be? Will there be some published code which ensures that the Secretary of State complies?

Lord Wolfson of Tredegar: I have said that we will publish the principles which underpin the Secretary of State’s decision. The other point that I make in this regard, which goes to the adequacy of reasons point—it was touched on by the noble and learned Lord, Lord Falconer, with his experience—is that judicial review of the Secretary of State’s decision would be available. My noble friend will be aware from the case law as to the relevance of reasons in a case where the decision can be challenged by way of judicial review.
In light of what I have said, I hope that the Committee will appreciate that this mechanism, which we expect to be used only in rare instances, will prevent the automatic release of offenders whose risk becomes apparent only after they have been sentenced.
Let me make one point. I apprehended at certain points in the discussion that there was perhaps a misapprehension, which I should clear up: that one could detain the prisoner beyond the end of the sentence as handed down by the court. We are not talking about that. To be clear, we are talking about the period between the automatic release point and the end of the sentence.
The Secretary of State’s initial decision to refer such a prisoner would therefore be made because concerns were raised by prison and probation officials who have close contact with the prisoner. Those involved in the management of the particular offender and their case, which in most instances would include both prison and probation staff, would be involved in bringing the matter to the attention of the Secretary of State.  Prison and community offender managers are experienced in carrying out detailed assessments of the risk posed by offenders and of what can be put in place to manage that risk, both during the custodial period and following release. All that would be part of the assessment. We would also expect the close involvement of MAPPA, so that there is a cross-agency perspective of the risk the offender poses, and risk-management strategies that could be put in place for the time when the prisoner would otherwise be released.
On that basis, and with all respect to the High Court and its judges, I simply do not see how the considerable expertise and wisdom of the High Court could be best put to use here. This is a process for creating a mechanism to respond swiftly and efficiently to the emergence of possible future risk. The addition of the High Court would turn it into a litigation-heavy process, while adding an unnecessary burden on the High Court itself. I simply do not understand how the involvement of a High Court judge at the initial stage would materially increase the safeguards that would already be in place to ensure that this power operates correctly and fairly.
Over and above that, I respectfully endorse the point made by my noble friend Lord Hailsham about the word “would” in subsection (13) of the proposed new clause. The problem here is that the amendment would likely impede the decision-making power of the Parole Board. The board may still opt to release an offender referred under this power, but in practice the High Court’s opinion would be difficult to ignore. The hypothesis here is that the High Court has determined—“determine” is the word used in the first line of subsection (13)—that the offender
“would, if released, pose a significant risk”.
That would be the backdrop to the Parole Board’s assessment. As I said earlier, the High Court would effectively have rolled the pitch for the Parole Board. That is particularly the case if what is envisaged is not some judicial review-type test but what is called a full hearing. The problem there would be that the High Court has determined the point. We have to remember that the authority—or the operative decision, to use the helpful phrase of the noble and learned Lord, Lord Falconer—is the decision of the Parole Board, not of the Secretary of State.
For those reasons, although I understand the impetus behind the amendment, I suggest that, far from making the mechanism better, it would make it significantly worse. I therefore respectfully invite the noble Lord to withdraw the amendment.

Lord Carlile of Berriew: My Lords, I am very grateful to those who have intervened in this debate. I pay particular tribute to the noble Lord, Lord German, who has had the courage to climb on to the head of the pin occupied by a number of broad-shouldered and big-elbowed lawyers. He made some very good points in doing so, particularly his straightforward point about the gatekeeping role that we say in this amendment should be carried out by the High Court.
I thank the noble Viscount, Lord Hailsham. I was around in the other place in the heady days when he was a Minister at the Home Office. I suspect that his experience of the Home Office as he described it was  as instructive as such experience would be today. What is required in these cases is a clear exercise of judgment before they reach the Parole Board, fully expressed and in a justiciable way. A lot has been said about the adequacy of reasons in relation to this issue. I think we are all agreed—certainly, the noble and learned Lord, Lord Falconer, and the Minister agreed—that we are concerned about the adequacy of reasons.
I am puzzled by what the Minister said about the utility of judicial review in these cases. He knows—all those of us who have been in judicial review cases, and some of us have been judges in them, know—that the test of judicial review is not an ordinary merits test; it is not a test of what is right. The test in judicial review, if you are to win, is: would no reasonable Minister have made this decision? It is quite different from the test on the merits which would be applied by the High Court. I will say a word in a moment in answer to points that have been made about the High Court. I say to those who have suggested that judicial review is an adequate remedy—of course, it is a possible remedy—that it does not fit the bill because it does not mean that there will be a merits test with the adequacy of reasons that has been discussed.
The noble and learned Lord, Lord Falconer, is an absolutely excellent and much-admired advocate, at least by me, but like other great advocates is sometimes wrong, and I venture to suggest that he may have been wrong on this occasion. What this amendment argues  for is two quite different stages which are carried out without the intervention of the Executive, save to refer a case. The High Court makes the first assessment. I take what was said by the noble Viscount on drafting as something that needs to be considered, so I will just use the present tense: is there a risk that there is a danger of a particular sort? If so, the case is referred to the Parole Board. That is a decision based on the evidence, on merits, after a proper hearing. It goes to the Parole Board and a quite different assessment is made, which is the one the Parole Board expertly carries out all the time and is about release provisions—whether a person should be released or detained in custody.
It has been an interesting debate and I will reflect on what has been said. I will of course reflect on the comments made by the Minister. I am grateful to him for analysis, which naturally merits further thought, but for the time being I beg leave to withdraw the amendment.
Amendment 208 withdrawn.
Clause 109 agreed.
Clauses 110 to 115 agreed.
House resumed.
House adjourned at 7.08 pm.